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Kinds of Jurisprudence
• Analytical Jurisprudence
• Historical Jurisprudence
• Ethical Jurisprudence
Analytical jurisprudence
It analyses the prevalent law, that is, the principles of law as these exist now. It also
studies theory of legislation, precedent and customs and study of different legal concepts
such as property, possession, trust, contract, negligence etc.
It analysis the basic principles of civil law, it does not pay any attention to the
evolutionary process and there Ethical aspects that is weather they are good piece of law
or bad one. We can say that analytical jurisprudence does not consider the historical and
ethical aspects. Its scope can be underlined as given below:
c) Examination of the relations between civil law and other forms of law
f) Classification of the different sub-divisions of corpus jurist or the entire body of law
with reason
therefore
g) A treatment of rights, their kinds and classes, their creation, transfer and extinction
It studies history of law and evolution of law over a period of time and also amendments,
introduction of new principles of law.
It studies the principles of law in their origin and developments that take place over a
period of time. We can say that it gives the past history of important existing legal
conception and principles of a particular system. For instance, the origin and
development of the nature of private property, of individual ownership, of contract, etc.
The object of historical jurisprudence is to vindicate the earliest of mankind as they are
reflected in ancient law and to point out their relation to the modern thought. This branch
is not the same thing as legal history.
Ethical jurisprudence
It deals with the law that should be in an ideal state. It lays down the different purposes
which should be fulfilled in an ideal state. It studies the modifications in the existing law
in order to achieve these purposes and objects. The main object of ethical jurisprudence is
the attainment of justice.
Ethical jurisprudence deals with the law in the ideal state as it should be. Law exists to
fulfill certain purposes. It is for this branch of jurisprudence to lay down what those
purposes are and whether these are fulfilled by the law existing at any given time. It
considers the modifications necessary in the existing law so that it may fulfill the objects
for which it exists. The other two branches are concerned with an analysis of the law as it
is or as has been without being concerned with its adequacy or in-adequacy. Ethical
jurisprudence has as its object the attainment of justice. It strives to bring the principles of
the law to such a form that they serve best that end.
Historical jurisprudence tells us what the source of a particular principle of law was,
where from it was derived, what was its shape and scope in ancient times, how and under
what influences it came to develop and through what states it passed to assume finally the
shape in which we find it existing today.
Analytical jurisprudence studies the basic principles of law as they exist today without
being concerned with the history of those principles. The modern tendency is to make a
comparative study of the two, and while dealing with analytical jurisprudence not to
ignore entirely the historical jurisprudence.
From the historical point of view, justice was administered by the early kings under
divine inspiration without there being any law in the modern sense. Law according to
Austin is a command emanating from a definite superior given to others who are
habitually obedient to obliging them to a course of conduct with a threat of sanction in
the event of disobedience. It involves the idea of prescribing not a single act but a series
of acts.
According to writers like Sir Henry Maine, the repeated judgments in similar cases
established certain principles, which in course of time cam to be recognized as binding
and to be accepted as governing general course of conduct. Thus customs took roots in
the societies. and these customs were followed by people in the belief that following
them was obligatory and not optional or voluntary. Customs were treated as law. In
analytical jurisprudence custom occupies a much less important place. All customs are
not law, only such customs as satisfy certain conditions are recognized as having the
force of law.
Salmond gives two meanings to the term, one in its wide sense, and another in its narrow
sense:
(a) In its primary sense, jurisprudence means ‘the science of civil law’ it is a science as
distinguished from art –a systematized knowledge as distinguished from mere knowledge
of the provisions of existing law. Secondly, it is the science of civil law or the law of the
land –the law of the lawyers and the law of courts –not of all the different systems of law,
or even of all the rules contained in a particular system. It is confined to law proper –
those laws which are enforced by the courts.
(ii) Legal history, i.e., the stages by which the laws came to evolve in their present or past
shape; and
(iii) Science of legislation i.e. study of the law as it ought to be in an ideal state in the
future ( not law as it is or has been in the past )
(b) In a more restricted and particular sense, Salmond defines jurisprudence as the
science of the first principles of civil law.
In this sense, jurisprudence is concerned with the first, basic or fundamental principles of
civil law. In other words, if we take away from the entire science of civil law the concrete
provisions of the law, the abstract principles that would be left behind, will be
jurisprudence.
1. Jurisprudence is the “grammar of law” and teaches the lawyer and the legislator
proper use of legal terms. It ensures homogeneity and accuracy in legal phraseology.
2. It trains the mind and enables us to discover and a void legal fallacies which would
otherwise escape notice.
3 . a person who has studies jurisprudence will be able to study foreign laws
intelligently if need be,
Definitions of Law
According to Blackstone
“Law signifies a rule of action, and is applied indiscriminately to all kinds of action.”
According to Holland “Law refers to a general rule of action, taking cognizance only of
external acts enforced by a determinate authority, which authority is human, and among
human authorities is that which is permanent in a political society.”
According to Hobbs
According to Austin
“A law is a rule of conduct imposed and enforced by the sovereign.”
According to Salmond
“Law is the body of principles recognized and applied by the State in the administration
of justice.”
According to De Montmorency
“Coercion is a weapon of law which law has forged, but it is not the basis of law.”
According to Pound
“Law is the body of principles recognized or enforced by public and regular tribunals in
the
administration of justice.”
According to Wilson “Law is that portion of the established thought and habit which has
gained distinct and formal recognition in the shape of uniform rules backed by the
authority and power of Government.”
According to Green
“Law is the system of rights and obligations which the state enforces.”
According to Lord Radcliff “You will not mistake my meaning or suppose that I
depreciate one of the great human studies if I say that we cannot learn Law by learning
Law. If it is to be anything more than just a technique it is to be so much more than itself;
a part of history and sociology, a part of ethics and a philosophy of life.”
• International Law
• Civil Law
Imperative Law
The three ingredients of imperative law are explained in detail:
(ii) The compulsion is the fear of falling in the eyes of one’s fellowmen;
(iii)The punishment takes the form of ridicule, contempt or social censure or boycott.
One follows a moral rule because the society has laid it down and because of fear to fall
in the eyes of the companions. If a person fails to follow moral law, that person would
become a target of contempt, ridicule and censure and if his conduct is very immoral he
may even be boycotted by the society / fellowmen. The rules of morality, church, trade
unions, clubs, etc., are regarded as rules of imperative law.
4. International law may be regarded as a form of imperative law.
The rules of international intercourse are laid down by the civilized states, body or group
(now there is a regular international body which partly does so: the United Nations
Organization). The rules are to be followed compulsory and their breach is followed by
punishment, censure of the other states, discontinuation of diplomatic relations, economic
sanctions, blockade and lastly, the most formidable one that is war.
What is sanction? What is the form of sanction?
Sanction in Roman law denoted the portion of statute relating to penalties. Sanction is the
instrument of coercion by which a rule of imperative law is enforced. It is the means by
which obedience to the rule is ensured by the instrument of coercion by which any
system of imperative law is enforced. Austin says that sanction is a conditional evil –the
evil or pain to be incurred by a wrong-doer if the law is broken. It is the force of coercion
or penalty which ensures that rules of imperative law will be observed.
Illustrations:
1. In divine law, sanction takes the form of evils to flow from divine wrath —the
punishment for sins to be inflicted here or hereafter.
2. In civil law the sanction is the sword of the state –its physical force which punishes a
breach of the law. It may take the form of loss of some right, non-recognition of a deed or
instrument (e.g. on breach of some rule of stamp or registration law), compulsory re-
imbursement or payment of compensation (contract); damages; restitution of property
(e.g. in theft or receiving stolen property) fine; forfeiture or property or imprisonment
(crimes).
3. Moral or social rules have the sanction of loss of public opinion, or of inviting public
contempt, censure or ridicule, or social boycott.
4. The sanction in case of international law is censure of other state, withdrawal of trade
concessions and facilities, economic blockade, war-like blockade, war etc.
Sanction always operates upon desire
If X is about to break a rule of imperative law e.g. X thinks of stealing Y’s purse) X shall
have a choice between two pains:
(1) either X should keep within the law and thus suffer the pain of not getting the illegal
advantage:
(2) or X should break the law the sanction affords a choice between two pains. It operates
upon the desire to gain illegally. If the pain to follow the breach of law is greater than the
pain suffered by keeping within the law or in other words, the fear of punishment is
strong enough to care the illegal desire, the intending evil doer will be restrained.
Physical or Scientific Law
The rules relating to uniformity of behavior of inanimate or animate things: or beings
under particular circumstances are intended in the term “physical or scientific law to be
discussed”. Instances of such laws are the rules of chemistry and physics, such as the law
of diffusion of gases, of chemical reactions, or rectilinear propagation of light, the law of
motion, and gravitation, the law of astronomy, such as the rules governing planetary
motion, the biological laws of propagation of species, the law of evolution and growth of
all beings and of human psychology, etc. where there is a uniformity in conduct of living
beings or lifeless things, there is a corresponding physical law governing the same. One
noteworthy characteristic of such law is that if any law is one shown to be broken it
ceases to be law (for instance if at any instance light should be shown to travel in curves,
the law of rectilinear propagation of light will no longer be a law) : while rules of civil
law are constantly being broken and yet they remain law (e.g., a thief steals, he is
punished, but the law against theft yet continues to be in force).
In other words, physical laws are absolute; they are physical compulsion. There is no
choice left with the being or thing subject to a scientific law to follow it or not to follow
their observance depends on his volition, and incase of breach, there only arises a penalty
or punishment. The name Natural law has sometimes been given to this kind of law. The
Hebrew Scriptures preach that god as the supreme creature of all things, prescribed
certain rules of conduct for living and inanimate things; these rules are followed by all
creation as homage to God, and thus result in uniformities of conduct under the given
conditions. The rules applied by God to living beings (men and animals) were called
“Natural” or “Rational” law; while rules applicable to lifeless things were given the name
of “physical” law. In modern conception, uniformities of behavior of all things, animate
or inanimate, under specific conditions, are given the name of scientific or physical law.
Natural or Moral Law
The term Natural or Moral law denotes another very important conception, as explained
below:
In its primary sense as referring to physical universe external nature, a law of nature
represents a rule governing a set of natural phenomena and set by the guiding principle
pervading in the universe, e.g., the law of gravity. Natural law in this sense is used by
physical scientists and expresses the statement that a particular phenomenon always
occurs if certain conditions are present.
When it is applied to the moral as distinct from the physical world, the moral law of
nature means a law which nature herself sets to mankind. The law is natural which issues
out of the mental and moral constitution of man as a man, e.g., as a moral and intellectual
being. We will here discuss the natural law in this sense.
This kind of law has been given various other names
i. Divine Law, for the principles are supposed to have been ordained by God for the
guidance of mankind.
ii. Rational Law, for it is based on reason and the rules are addressed to intelligent human
beings who have the power to reason.
iii. Unwritten Law, for its rules are not to be found in any Code Jus non-scriptum as
distinguished from Jus scriptum the written law.
iv. Universal or common Law, i.e., that law which applies to all states in common or is
universal in its application to distinguish if from the various civil laws of different states.
Conventional Law
This name is given to the body of rules agreed to be followed by the parties which are
subject to them in order to regulate their conduct towards one another. This kind of law
acquires its force or validity from the agreement. The sanction behind it may be the
displeasure of the parties offended and in some cases, the physical force of the state.
Conventional law may be divided into two kinds
1. Rules that are recognized and enforced by the state e.g., contracts, the memorandum
and articles of association of a limited company (these contain the rules by which the
share-holders agree to be bound.
2. Rules enforced by the parties themselves i.e., rules of games and sports.
Conventional law is a law in the general sense because its rules ensure a uniformity of
conduct. The rules of cricket make it certain that the game will be played in the same way
and where, and between teams of any nationality.
Customary Law
In this kind of law are included rules which are habitually followed by a majority of
person subject to them in the belief of their binding nature. Such rules have been
followed for a long time in the past and are expected to be followed in future as well.
Customary law derives its force from the long course of past conduct resulting in the
same uniformity of action in given set of circumstances. Some rules of customary law
( like conventional law ) may come to be recognized and enforced by the state, in which
case they will form a part of imperative law.
Practical or technical Law
In this category fall rules which are to be followed to achieve uniformity of result in
practical or technical matters, e.g., manufacture. Those who want to make pens of a
particular type will have to follow certain rules of procedure. These rules when followed
repeatedly will yield uniformly similar pens. Rules of manufacture, engineering,
architecture, photography, attainment of skill in games by practice of exercises to be
carried out in order to develop particular limb, will fall under this head.
International Law
International law has been differently defined by different jurist.
Salmond takes it as “those rules which govern sovereign states in their relations and
conduct towards each other”. Other definitions are: “ the body of rules which by custom
or treaty civilized states regard as binding upon themselves in their relations with one
another, and whose violation gives the injured party a legal right to redress”( Wheaton);
“The aggregate of rules to which nations have agreed to conform in their conduct towards
one another” (Lord Russel). “The collection of usages which civilized states have agreed
to observe in their dealings with each other” (Coleridge L.C.J.).
Kinds of International Law
Depending upon whether the consent is express or implied international law is
divided into:
1. Conventional international law: in this case the consent is express e.g., Geneva
Convention
2. Customary international law: in this case the consent is implied from long course of
uniform conduct of states, from which rules are evolved, e.g., the rules as to treatment of
prisoners of war.
Salmond divided international law independently of consent, express or implied, as
follow:
(a) Common law of Nations, i.e., that portion of law which is common to all states—a
portion universally or generally followed among the states, and
(b) Particular law of Nations, i.e., that portion which applies solely between two or more
states by virtue of an agreement between them.
Civil Law
Salmond defines civil law as the “law of the state, the law of the land, the law of the
lawyers and the law of Courts.”
Civil law has the following meanings
1. Civil law means Roman Civil Law— as distinguished from the law of the church—
these were the two distinct legal systems which influenced the development of the law of
European countries after the dark ages.
2. It also means the entire body of Roman law as distinguished from English Law.
3. Civil law is also used for a particular branch of the law of the land. It means the
residue of the law of the state after certain special branches, such as criminal law and
marshal law, have been taken away from it.
Certain substitute has been employed to convey the sense of the law of land on account of
the ambiguity which riddled the whole discussion. These are:
1. Municipal law, but this is also unsatisfactory law, —the law relating to local bodies,
such as municipal corporations.
2. Positive law, (the laws set by human agency as distinguished from uncreated law). But
this is too wide term to be suitable. It contains other law besides the law of land, for
example, international law.
Sources of law
According to Salmond, following are the main sources:
1. Formal sources
2. Material sources
Formal Sources
Formal sources are comprised of statutes and decision of the courts.
• Sources of Law
• Material Sources
• Formal Sources
• Historical Sources
• Legal Sources
• Customs
• Legislation
• Precedent
• Agreement
• Material sources
Material sources are comprised of legal sources and historical sources. Legal sources are
comprised of the following:
a) Legislation
b) Precedent
c) Customs
d) Agreement
The main instruments under the legal sources are legislation and precedent.
Precedent or Case Law
The decisions made by superior judiciary contain interpretation of law are called case law
or precedents. The decisions can be relied upon/cited as precedents in future at the time
of adjudication of the cases.
Principles of binding precedent are underlined below
The decision relied upon must be based upon the interpretation of law.
The precedent must have nexus to the central point of the case.
The facts of the precedent being cited and the case being adjudicated upon must be the
same.
Sources of law in Sharia
The sources of law in sharia are:
1. Al-Quran
2. Sunnah of The Holy Prophet ( pbuh)
3. Ijtehad
These are presented in figure on the next page.
Sunnah of Holy
AL – Quran
Prophet
Ijtehad
(PBUH)
Process of Legislation
Parliament
It consists of President of Pakistan, National Assembly and Senate.
Process
Parliament / federal legislature has been given powers by the constitution of
Pakistan (1973) 4th schedule in two lists, that is:
a) Federal legislative list
b) Concurrent list
The process of legislation can be understood with the help of following diagram.
Process of Legislation
When National Assembly is in Session
Money Bill
All Other Bills
Senate
President
Assent
Act/Law
Ordinance
When National Assembly is not in Session
President
National Assembly
Sent for reconsideration to Parliament (Joint sitting of National Assembly and Senate)
Reject
A bill can be presented in either house whether national assembly or senate and after
being passed by simple majority shall be transmitted to other house. When the bill is
passed by both houses of the parliament, it is then presented to the president for assent. If
the bill presented to President is not given assent or sent back to the parliament for any
amendments, it will be considered in the joint sitting of the both houses of the parliament
and if passed shall be again presented to the President for his assent. Now the bill will
become the act of parliament and president does not have powers to withhold assent. The
bill when passed by the parliament is called an Act.
Money Bills
Money bill shall originate in the national assembly and after being passed shall be
presented to the president for assent. Money bill shall not be presented to the senate. The
rest of the procedure is the same as explained above.
Ordinance
Under the constitution of Pakistan, the President can promulgate an ordinance, if any
house of parliament is not in session. The ordinance shall stand repealed after one
hundred twenty days, if it is not presented or passed by the parliament.
Examples:
1. Mr. Yasir agrees to sell his car to Mr. Fahad for Rs 600,000. Here for Mr. Yasir’s
promise to sell the car,
the consideration is Rs 600,000 and for Mr. Fahad’s promise to buy the car, the
consideration is the car
which he shall receive on performance of this contract.
2. Mr. Usman hires the services of Mr. Umer as an accountant at a monthly salary of Rs.
20,000. In this illustration, the monthly salary of Rs 20,000 is the consideration for Mr.
Umer and the services which have
been promised to be rendered by Mr. Umer is consideration for Mr. Usman.
Scope and essentials of Consideration: The scope and essentials of consideration are wide
ranging which are outlined below:
Lawful Object
The purpose of the agreement should not be against the law. For example, the contract in
restraint of trade shall not be valid contract since it is against the provisions of the
Constitution of Pakistan.
• Disqualification by infancy;
• Disqualification by insanity;
• Other special disqualifications by personal law.
“To Contract”—means, to bind himself by promise. A minor who gives value, without
promising any further performance, to a person competent to contract is entitled to sue
him for the promised equivalent. This may be properly not in contract but on a quasi-
contract under section 70.
Minor’s agreement: —If the first branch of the rule laid down in the section be converted
into a negative proposition, it reads thus: No person is competent to contract who is of the
age of majority according to the law to which he is subject: in other words, a minor is not
competent to contract. This proposition is capable of two constructions · either that a
minor is absolutely incompetent to contract, in which case his agreement is void, or that
he is incompetent to contract only in the sense that he is not liable on the contract though
the other party is, in which case there is a voidable contract. If the agreement is void, the
minor can neither sue nor be sued upon it, and the contract is not capable of ratification in
any Hmanner;H if it
is voidable, he can sue upon it, though he cannot be sued by the other party, and the
contract be ratified by the minor on his attaining majority.
Where, an infant retains property obtained under the contract from the other party, the
equitable remedy of restitution has been applied, even though the infant made no false
representation as to his age.
Ratification: — It is settled principle of law that a minor’s agreement is void, it follows
that there can be no question of Hratifying it.H Upon the same principle a promissory
note given by a person on attaining majority in settlement of an earlier one signed by him
while a minor in consideration of money then received from the obligee cannot be
enforced in law.
Payment of debt incurred during minority: Where a person on attaining majority pays of
debt incurred by him during minority, no question of ratification of a contract arises,
since an agreement with a minor is merely void and not unlawful, the sum paid cannot be
sued for subsequently, and in law it must be regarded
on the same footing as a Hgift.H
It is within the competence of a certificated guardian appointed by statute, such as the
Guardian and Wards Act, 1890, or the various Courts of Wards Acts to enter into a
contract for the purchase or sale of
immovable property on behalf of the minor with the sanction of the HCourt.H
Persons otherwise “disqualified from contracting.”—The capacity of a woman to contract
is not affected by her marriage under the law.
According to above definition the following parameters would determine the legal
capacities of parties to a contract:
• Parties to contract are required to be of the age of majority.
• Of sound mind
• Not barred from entering into contracts by the operation of law.
Free Consent of the parties
This is an important essential of a valid contract. It requires that contract should be
entered into with free consent of parties. This topic has been explained in detail in later
discussion.
Consent shall be treated as free if not obtained by:
• Coercion
• Undue influence
• Fraud
• Misrepresentation
• Mistake
Kinds of Contract:
The contracts are classified as outlined below:
(a) Valid contract
(b) Voidable contract
(c) Void contract
(d) Unenforceable contract
(e) Express contract
(f) Implied contract
(g) Executed contract
In case a voidable contract is acted upon by a party as valid, that party cannot
subsequently deny the validity thereof.
According to section 14, consent is said to be free when it is not caused by:
(a) Coercion or
(b) Undue influence or
(c) Fraud or
(d) Misrepresentation or
(e) Mistake
Example:
Mr. Yasir entered into an agreement to sell his house to Mr. Umer for Rs 1 Million. The
consent of Mr.
Umer was obtained by use of coercion by Mr. Yasir. This agreement is voidable at the
option of Mr. Umer since his consent was not free.
Scope of voidable contracts
The section states the legal effect of coercion, fraud, and misrepresentation, in rendering
contracts procured by them HvoidableH; the foregoing sections have only laid down their
respective definitions. Perhaps the most important parts of the section, certainly those
which need the most careful attention are the exception and the explanation. These mark,
though hardly with practical completeness, the limits within which the rule is applied.
Before considering them we have to pause on the second paragraph of the body of the
section. It reads plainly enough at first sight, but the thought does not seem to be really
clear. The party entitled to set aside a voidable contract may affirm it if he thinks fit. That
is involved in the conception of a contract being voidable. And if he affirms it, he may
require the performance of the whole and every part of it (subject to the performance in
due order of whatever may have to be performed on his own part) or, in default thereof,
damages for non-performance (subject to special causes of excuse, if any, which we are
not now
considering). If, as may well be the case, the default is wholly or partly due to the non-
existence of facts which the defaulting party represented as existing, this party can
obviously not set up the untruth of his own statement by way of defence or mitigation;
and, if the case is a proper one for specific performance, and if it is in his power to
perform the contract fully, though with much greater cost and trouble than if his
statement had been originally true, he will have to perform it accordingly. Is anything
more than this meant by the declaration of the affirming party’s right to “be put in the
position in which he would have been if the representations made had been true”? There
are obviously many cases in which such restitution is not literally possible. Thus, if the
owner of an estate subject to a lease for an unexpired term contracts to sell it to a
purchaser who requires immediate possession, and conceals the existence of the lease.
The purchaser cannot be put in the same position as if the representation that there was no
tenancy, or only such a tenancy as could be determined at will, had been true. Cases may
occur, on the other hand, where a seller of land has held out, though not in express terms
or willfully, an element of attractiveness or security in the property offered for sale which
it is in his power to realise by some act or undertaking on or with regard to adjoining
property of his own. But it is dangerous to formulate general propositions in the law of
contract from decisions in suits for the specific performance of contracts relating to land,
and it is not clear that the facts of the decision in question are not reducible to
misrepresentation or an ambiguous offer. Nor is it certain that the present enactment can
always be literally relied on. A sells a house to B, and by some blunder of A’s agent the
annual value is represented as being Rs. 2,000 when it is in truth only Rs. 1,000.
According to the letter of the present paragraph, B, may insist on completing the contract
and on having the difference between the actual and the stated value paid to him and his
successors in title by A and A’s successors in title for all time. Nothing short of that will
put him “in the position in which he would have been if the representations made had
been true.” This is obviously not the intention of the enactment.
There is an important class of cases in which, although there is no such misrepresentation
as to make the contract voidable, complete performance is, by reason of misdescription or
otherwise, unattainable, and specific performance will be decreed subject to
compensation for the defect. It was originally proposed to deal with such cases in the
Contract Act. The enactment governing them is now to be found in the Specific Relief
Act, S. 14.
Gift under Muslim Law—Fraud in procuring gift—Principle of section applicable:
A gift is not contract (though in Muslim Law it is called a contract) but the principle of
section 19 may be applicable even to a gift. Therefore a gift tainted with fraud would be
voidable and not void.
Contract by statutory body:
Consent to contract given by Board under mistake of fact—Contract invalid.
Held by the court: The Karachi Port Trust is a statutory body and is governed by the
statute and its bye-laws. Before a contract of high valuation could have been validly
awarded, it would have to be with the consent not only of the Chief Engineer but also of
the Board. In the present case, the Chief Engineer and the Board gave their consent upon
a mistake of fact. Therefore there was no valid contract in existence.
Promise to do an act in future not performed—Not a misrepresentation:
A promise to perform an act in future, if not fulfilled would not amount to
misrepresentation. It may be a breach of promise or an agreement, but it is not a
misrepresentation as to existing facts within the meaning of section 19.
Voidable contract acted upon—Cannot be challenged subsequently.
S. 19 read with S. 13 (2) Sale of Goods Act—Misrepresentation regarding the model of
the car by the seller–if contract can be rescinded after the car had been used by the buyer.
The plaintiff purchased a car from the defendant which he was wrongly told was 1949
model. He used the car for sometime and then found that it was 1948 model car. He
therefore gave notice to the defendant that he rescinded the contract on ground of fraud
and asked them to pay back the price of the car paid by him.
Held by Rehman C.J. on reference from D.B. There is no provision in the Sale of Goods
Act, 1930, bearing on the effect of fraud, misrepresentation, coercion and undue
influence, on a contract of sale. I would be, therefore, disposed to hold that the relevant
provisions of the Contract Act on these questions continue to be applicable to contracts of
sale despite the provisions of section 13 of the Sale of Goods Act. This section also does
not contain any reference to cases of fraud etc, and apparently contemplates such cases as
involve a breach of a condition without fraud, misrepresentation and the like affecting the
formation of the contract itself, at its inception, if thus interpreted, there would be no
difficulty in holding that section 19 of the Contract Act can stand with section 13 of the
Sale of Goods Act, 1930. The result would be that in case of fraud and misrepresentation
etc. vitiating the contract unless there was a waiver on the part of the party affected, the
right of rescission would not be lost.
Fraud—Limitation
Person in possession of land but a deed ownership of such land got executed by
misrepresentation and fraud—Reason getting ownership of land by execution of such
lead if suing for possession on basis of such deed and claiming deed to be genuine,
executant of deed, held, within her right to plead deed being void on account of fraud and
other party having no title or right to posses land and no impediment of limitation could
arise to raise such plea.
Applicability
It is an essential requirement that when executing sale deed a person (pardanashin lady)
should be in know that deed in question was of sale—S. 19 would not apply if her
awareness was only that deed she was executing was a power of attorney.
Registered sale deeds on basis of agreement
Suit for declaration and cancellation of deeds on plea that documents were procured from
plaintiffs by deceased through fraud and misrepresentation—requires ad valorem court-
fee.
Kinds of Contract:
We have discussed different kinds of contracts; same are reproduced here under for ready
reference.
We have already discussed valid and voidable contract have already been discussed, rest
of the kinds of contract are discussed hereunder.
Void Agreements
This is a very wide topic and we shall explain the scope of respective sections in later
discussion.
Agreements void, if considerations and objects unlawful in part. If any part of a single
consideration for one or more objects, or any one or any part of any one of several
considerations for a single object, is unlawful, the agreement is void.
Illustration
Trusts Act, 1882: —S. 4 of the Act provides that where a trust is created for two
purposes of which one is lawful, and the other unlawful, and the two purposes cannot be
separated, the whole trust is void.
(3) or is a promise to pay a debt barred by limitation law; it is a promise, made in writing
and signed by the person to be charged therewith, or by his agent generally or specially
authorised in that behalf, to pay wholly or in part a debt of which the creditor might have
enforced payment but for the law for the limitation of suits.
Explanation 1: —Nothing in this section shall affect the validity, as between the donor
and donee, of any gift actually made.
Illustrations
(a) A promises for no consideration, to give to B Rs. 1,000. This is a void agreement.
(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his
promise to B into writing and registers it. This is a contract.
(c) A find B’s purse and gives it to him. B promise to give A Rs. 50. This is a contract.
(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a
contract.
(e) A ownes B Rs. 1,000 but the debt is barred by the Limitation Act. A signs a written
promise to pay B Rs. 500 on account of the debt. This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was
freely given. The agreement is a contract notwithstanding the inadequacy of the
consideration.
(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the
agreement was freely given.
(h) The inadequacy of the consideration is a fact which the Court should take into
account in considering whether or not A’s consent was freely given.
In the case of family arrangements, the Court will not look too closely into the quantum
of consideration, and an arrangement designed to promote peace and good will among
members of a family has been held to be based on good consideration, even in the
absence of a dispute or of a claim to property.
A compromise relating to title to land, at a time when it was doubtful, is valid, although
subsequently it may be found by judicial decision in another case, that one of the parties
to the corn. promise had a wholly valid title, and the other had not title at all. An
agreement by client to pay to his vakil after the latter had accepted the vakalatnama
certain sum in addition to his fee if the suit was successful is without consideration.
An agreement between a creditor and a debtor entered into before the expiry of the period
of limitation, whereby the date of payment is extended beyond the period of limitation, is
valid, though verbal, if there is a consideration for the agreement, e.g. payment of interest
up to the extended date. Such an agreement is not an acknowledgment within the
meaning of S. 19 of the Limitation Act, nor is it a promise to pay a barred debt; it may be
enforced at any time within three years from the date on which it was made. “A promise
to pay may be absolute or conditional. If it is absolute, if there is no ‘but’ or ‘if’, it will
support a suit without anything else; if it is conditional, the condition must be performed
before a suit upon it can be decreed.
Similarly, if the promise be to pay a barred debt “within a month,” the promisee must
wait for a month before he can sue on the promise. If the debtor promises to pay a barred
debt out of his share of the profits of the business started by him in partnership with his
creditor, the latter cannot recover the debt except in the manner provided in the
agreement.
Agent generally or specially authorised in that behalf. A Collector, as agent to the Court
of Wards, is not an agent “generally or specially authorised in that behalf” so as to bind a
ward of the Court of Wards by a promise to pay a barred debt. A pleader cannot bind his
client unless he is specially authorised in that behalf; nor a minor’s guardian the minor.
Debt: —The expression “debt” here means an ascertained sum of money. A promise,
therefore, to pay the amount that may be found due by an arbitrator on taking accounts
between the parties is not a promise to pay a “debt” within this section. The expression
“debt” in this clause includes a judgment debt. A promise, therefore, to pay the amount of
a decree barred by limitation does not require any consideration to support it.
It is not necessary to the operation of this clause that the promise should in terms refer to
the barred debt. Thus where A passed a promissory note for Rs. 50,000 to B, and after the
debt was time-barred, passed another note promising “to pay Rs. 50,000 for value
received in cash,” it was held that it was open to B to show that the amount, though not
paid in cash, referred to the debt due under the first note.
An insolvent who has obtained his final discharge is under no legal obligation to pay any
debt included therein, and any promise to pay it is accordingly without consideration.
Such a debt is said to be barred by insolvency, and the Contract Act contains no
exception in favor of a promise to pay it.
Transaction to pay a time-barred debt: Gives rise to inference that it was without
consideration—Such transaction would be void under section 25 (3).
Gift made without consideration—Void—Conditions for such a gift: When a gift was
made for services rendered although they could not be measured in money:
Explanation I to section 25 of the Contract Act is fully applicable and the gift is
perfectly valid even if there was no consideration for it. For such a gift to be valid the
three essential conditions are;
(1) clear and unambiguous declaration of the intention of the donor to give immediately a
property to the donee;
If these three conditions are fulfilled, the gift is complete and valid.
Agreements void for uncertainty. Agreements, the meaning of which is not certain, or
capable of being made certain, are void.
Illustration
(a) A agrees to sell to B “a hundred tons of oil.” There is nothing whatever to show what
kind of oil was intended. The agreement is void for uncertainty.
(b) A agrees to sell to B one hundred tons of oil of a specified description, known as an
article of commerce. There is no uncertainty here to make the agreement void.
(c) A, who is a dealer in coconut-oil only, agrees to sell to B “one hundred tons of oil.”
The nature of A’s trade affords an indication of the meaning of the words, and A has
entered into a contract for the sale of one hundred tons of coconut-oil
(d) A agrees to sell to B “all the grain at Rahimyar Khan. “There is no uncertainty here
to make the agreement void.
(e) A agrees to sell to B “one thousand maunds of rice at a price to be fixed by C.” As
the price is capable of being made certain, there is no uncertainty here to make the
agreement void.
(f) A agrees to sell to B “my white horse for rupees five hundred or rupees one
thousand.” There is nothing to show which of the two prices was to be given. The
agreement is void.
When, therefore, the sellers told the buyers that each shipment shall be treated as if
separate contracts were made for it and they shall be bound to accept it even if this
shipment was only in respect of a part of the goods and the buyers agreed to this
condition, the agreement is not void as it is capable of being ascertained.
Agreement by way of wager void: Agreements by way of wager are void; and no suit
shall be brought for recovering anything alleged to be won on any Wager, or entrusted to
any person to abide the result of any game or other uncertain event on which any wager is
made.
Section 294-A of the Pakistan Penal Code not affected: Nothing in this section shall be
deemed to legalise any transaction connected with horse racing, to which the provisions
of section 294-A of the Pakistan Penal Code apply.
Wagering contract: —This section represents the whole law of wagering entracts now
in force.—There is no technical objection to the validity of a wagering contract. It is an
agreement by mutual promises, each of them conditional on the happening or not
happening of an unknown event. So far as that goes, promises of this form will support
each other as well as any other reciprocal promises. It would have been better if the
Courts in England had refused, on broad grounds of public policy, to admit actions on
wagers; but this did not occur to the Judges until such actions had become common; and,
until a remedy was provided by statute, they could only find reasons of special public
policy in special cases, which they did with almost ludicrous ingenuity.
Executed contract
Such contracts are those where interactive parties have completely performed their
respective obligations under the contract.
Example:
Mr. Ali entered into an agreement with Mr. Aslam to sell his car for Rs 800,000. Mr. Ali
delivers the car to Mr. Aslam and he paid the promised amount i.e. Rs 800,000 to Mr.
Ali. Such a contract is called an executed contract since both parties have performed their
part of promises.
Executory contract:
In such contracts both parties are yet to perform their obligations under the contract.
Example:
We take the same example as quoted above but with some difference.
Mr. Ali entered into an agreement with Mr. Aslam to sell his car for Rs 800,000. Mr. Ali
has not yet delivered the car to Mr. Aslam and Mr. Aslam has not yet paid the promised
price that is Rs 800,000 to Mr. Ali. Such a contract is executory contract since both
parties are yet to perform their part of promises.
We have already discussed that contracting parties must be competent under law to enter
into a contract. The scope of the legal capacity is provided in section11 which we have
already discussed and same is reproduced here under for ready reference.
“Every person is competent to contract who is of the age of majority according to law to
which he is subject, and who is of sound mind, and is not disqualified from contracting
by any law to which he is subject.”
Scope of definition:
According to above definition, the question of legal capacity of contracting party shall be
determined on the following parameters:
For the purpose of entering into contract, a person must have attained age of 18 years.
Contract by a minor is void ab-initio. In a transaction where minor is only a beneficiary
and not a contracting party, the transaction shall be treated as valid transaction. Under
Majority Act 1875, age of 18 years or more is the age of majority. If guardian is
appointed by court then minority continues till the age of 21 years.
A contract for personal service by a minor is void, in case of breach of such an agreement
on the part of a minor, he can not be sued.
A minor entering into a service contract can leave the job at any time and by doing so that
person (minor) shall not be committing any actionable wrong. It means that minor if
under a service agreement cannot be sued.
However there are some exceptions with respect to agreement with the minor or on
account of minor which have been provided in section 68:
Order of lunacy by court is binding upon the contracting parties and also on the parties
who are the claimant in this regard.
Evidence and proof
Evidence with regard to unsoundness shall be deduced from the circumstances of insanity
on case to case basis.
Unsoundness of mind at the time of contract
The question of unsoundness of mind at the time of contract shall be decided beside other
factors on the basis that the effect of drunkenness etc. influenced the decision making
power of that person at the time of making the contract or not.
Contracting parties not disqualified from contracting by any law
The disqualifications for entering into contract include minority, insanity and personal
law. A person suffered by any of these disqualifications is not competent in the eyes of
law to enter into a contract.
Free Consent
“Consent” defined Sec. 13: Two or more persons are said to consent when they agree
upon the same thing in the same sense.
Apparent and real contract: —The language of this section is, on the face of it, more of a
judicial or expository than of legislative kind. As an authoritative definition it does not
seem to define very much. It would need some courage to maintain that persons can be
said to consent when they do not agree upon the same thing, or that if they do not agree in
the same sense they can be side to agree in any sense at all.
If the section is to cover all kinds of contracts, as presumably it does, the word “thing”
must obviously be taken as widely as possible, though it seems most appropriate where
the contract has to do with corporeal property. We must understand by “the same thing”
the whole content of the agreement, whether it consists, wholly or in part, of delivery of
material objects, or payment, or other executed acts or promises.
Ambiguity: —Sometimes an apparent agreement can be avoided by showing that some
term (such as a name applying equally to two different ships) is ambiguous, and there has
been a misunderstanding without fault on either side. Such cases, however, are in fact
extremely rare. It usually turns out either that the terms have an ascertained sense by
which both parties are bound, and there is a contract which neither can dispute, whatever
either of them may profess to have thought, or that, when the facts are established, there
was really never a proposal accepted according to its terms, and therefore the conditions
of a binding
contract were not satisfied. Many of the cases cited in the books under the head of
mistake belong to the latter class.
Fundamental error: —In certain classes of cases there may be all the usual external
evidence of consent, but the apparent consent may have been given under a mistake,
which the party is not precluded from showing, and which is so complete as to prevent
the formation of any real agreement “upon the same thing”. Such fundamental error may
relate to the nature of the transaction, to the person dealt with, or to the subject matter of
the agreement.
As to the nature of the transaction: —A man who has put his name to an instrument of
one kind understanding it to be an instrument of a wholly different kind may be entitled,
not only to set it aside against the other party on the ground of any fraud or
misrepresentation which caused his error, but to treat it as an absolute nullity, under
which no right can be acquired against him by any one. There are much older authorities
showing that if a deed is falsely read over to an illiterate man, and he executes the deed
relying on the false reading as being the true substance of the transaction, his act is
wholly void.
We may expect to find fraud as an element in cases of this class. But it is not the decisive
element. A signature attached to a document supposed to be of a wholly different kind, or
not to contain a clause so important as substantially to alter its character, is invalid unless
the signor is estopped by negligence from denying that he understood what he was
signing, and this “not merely on the ground of fraud, where fraud exists, but on the
ground that the mind of the signor did not accompany the signature; in other words, that
he never intended to sign, and therefore in contemplation of law never did sign, the
contract to which his name is appended.
Error as to the subject-matter of the agreement: —It is quite possible for the parties in
contract to be under a common mistake of this kind. If the mistake is not common, it may
happen, in very exceptional cases, that by reason of an ambiguous name, or the like, each
party is mistaken as to the other’s intention, and neither is estopped from showing his
own intention. Otherwise a contract (assuming the other conditions for the formation of a
contract to be satisfied) can be affected by such a mistake, not common to both parties,
only where it is induced by fraud or misrepresentation. In section 18 of the Act, it has
been laid down that willful acquiescence in the other party’s mistake is equivalent to
misrepresentation under certain circumstances. If the mistake is common, it can seldom,
if ever, be said that there was no consent. A simpler and more correct explanation is to
say that there was an agreement subject to a condition understood or implied in the nature
of the agreement itself, though not expressed, and that condition has not been fulfilled. It
may be that at the date of the agreement the condition is already incapable of fulfillment
by reason of some fact unknown to the parties, as in the case of an agreement for the sale
of a horse which in fact is dead, or a specific cargo which in fact is lost. In that case no
operative obligation ever arises under the agreement.
“Free consent defined”: Consent is said to be free when it is not caused by: —
(1) coercion, as defined in section 15, or
(2) undue influence, as defined in section 16, or
(3) fraud, as defined in section 17, or
(4) misrepresentation, as defined in section 18, or
(5) mistake subject to the provisions of sections 20, 21, and 22.
Consent is said to be so caused when it would not have been given but for the existence
of such coercion, undue influence, fraud, misrepresentation or mistake.
Concept of “Consent not free”:
Not only consent but free consent is declared by S. 10 to be necessary to the complete
validity of a contract. The Act now proceeds to declare the meaning of this addition.
According to section 29 of the Act,
where there is no consent or no real and certain object of consent there can be no contract
at all. Where there is consent, but not free consent, there is generally a contract voidable
at the option of the party whose consent was not free. This section declares in general the
causes which may exclude freedom of consent, leaving them to be more fully explained
by the later sections referred to in the text. In one respect the language is open to
objection. It seems, when read together with that of other relevant sections, to assume
that there are cases in which a contract is voidable on the ground of mistake
Free consent is one of the important essential of a valid contract. The consent of parties
signifies perfect identity of mind between the contracting parties with regard to the
subject matter of the contract. An agreement is enforceable when the contracting parties
have given their consent and at the same time that consent should be free that is it should
be free from any influence.
Effects of consent that is not free
FREE CONSENT
We have already discussed the concept of legal capacity of parties to a contract and are in
the process of understanding the concept and scope of free consent.
Consent is said to be free if not caused by:
• Coercion or
• Undue influence or
• Fraud or
• Misrepresentation or
• Mistake
We have already discussed the concept and effects of coercion and shall discuss other
factors in the following paragraphs:
Undue influence
It means the exercise of the power or influence by a person who has some control or
influence on the other person, it is not just the existence of the influence or position of
dominance but to prove undue influence, it is required that influence of the power/
dominance vested in a person has been exercised to derive undue advantage from the
other party. In certain situations a party is in a position of dominance over other party.
Undue Influence has been defined in section 16 of the Act, same is reproduced
below:
A contract is said to be induced by “undue influence” where the relations subsisting
between the parties are such that one of the parties is in a position to dominate the will of
the other and uses that position to obtain an unfair advantage over the other.
In particular and without prejudice to the generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of another—
(a) where he holds a real or apparent authority over the other or where he stands in a
fiduciary relation to
the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.
Where a person who is in a position to dominate the will of another, enters into a contract
with him, and the transaction appears, on the face of it or on the evidence adduced, to be
unconscionable, the burden of proving that such contract was not induced by undue
influence shall lie upon the person in a position to dominate the will of the other.
Undue influence shall be considered to have been exercised if the following conditions
appear: Position of dominance / ability to dominate the other person
As we have discussed, a person must be enjoying a position of dominance or ability to
dominate the other person. Exercising undue influence due to the presence of fiduciary
relation between the parties. This
relationship signifies a relationship of trust and confidence, such as relation between a
doctor and his patient. There must be actual use of the influence or exercise of that
influence and deriving undue
advantage / benefit by virtue of that position of dominance / influence.
Illustrations on Undue influence
A, having advanced money to his son, B, during his minority, upon B’s coming of age
obtains, by misuse of parental influence, a bond from B For a greater amount than the
sum due in respect of the advance. A
employs undue influence.
(a) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his
medical attendant, to agree to pay B an unreasonable sum for his professional services. B
employs undue influence.
(b) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms
which appear to be unconscionable. It lies on B to prove that the contract was not induced
by undue influence.
(c) A applies to a banker for a loan at a time when there is stringency in the money
market. The banker declines to make the loan except at an unusually high rate of interest.
A accepts the loan on these terms. This is a transaction in the ordinary course of business,
and the contract is not induced by undue influence.
Explanation:
The above factors have been discussed in greater detail in the following paragraphs.
It will be sufficient for the present purpose to refer to a few of the leading authorities on
the various points dealt with by the text of the Act. The first paragraph of the section lays
down the principle in general terms; the second and third define the presumptions by
which the Court is enabled to apply the principle. It is obvious that the same power which
can “dominate the will” of a weaker party is often also in a position to suppress the
evidence which would be required to prove more constraint in a specific instance.
Modification of the ordinary rules of evidence is accordingly necessary to prevent a
failure of justice in such cases. Where the special presumptions do not apply, proof of
undue influence on the particular occasion remains admissible, though strong evidence is
required to show that, in the absence of any of the relations which are generally
accompanied by more or’ less control on one side and submission on the other, the
consent of a contracting party was not free. In the case of a pure voluntary gift (though
there is no general presumption against the validity of gifts) the proof is less difficult; but
this is not within our subject.
General meanings of Undue influence: The first paragraph gives the elements of undue
influence; a dominant position and the use of it to obtain an unfair advantage. The words
“unfair advantage” must be taken with the context. They do not limit the jurisdiction to
cases where the transaction would be obviously unfair as between persons dealing on an
equal footing.
It is an essential condition for the application of the section that one of the parties should
be in a position to dominate the will of the other. No further question arises until this is
proved. A plea of undue influence can only be raised by a party to the contract and not by
a third party.
Different forms of influence: —The second paragraph of the present section makes a
division of the subject-matter on a different principle, according to the origin of the
relation of dependence, continuing or transitory, which makes undue influence possible.
Such a relation may arise from a special authority or confidence committed to the donee,
or from the feebleness in body or mind of the donor. However, it is impossible to find
plain and clear-cut categories for transactions which are often obscure and complicated,
and sometimes purposely made so. Practically the most important thing to bear in mind is
that persons in authority, or holding confidential employments such as that of spiritual,
medical, or legal adviser, are called on the act with good faith and more than good faith
in the matter of accepting any benefit (beyond ordinary professional remuneration for
professional work done) from those who are under their authority or guidance. In fact,
their honourable and prudent course is to insist on the other party taking independent
advice.
Mental distress: — “A state of fear by itself does not constitute undue influence.
Assuming a state of fear amounting to mental distress which enfeebles the mind, there
must further be action of some kind, the employment of pressure or influence by or on
behalf of the other party to the agreement.” The mere fact, therefore, that a submission
was executed by the defendant during the pendency and under fear of a criminal
prosecution instituted against him by the plaintiff will not avoid the transaction on the
ground of “undue influence.”
An aged father executed deeds of gift and a wakfnama at a time when he was in a weak
state of mind as the result of a long drawn out illness. These transactions were brought at
the instance of his son and had the
effect of depriving the other members of the family of their just share of the inheritance.
As it was proved
that the son was in a position to dominate the will of the father and that he used that
position to his own
advantage, the deeds of gift and the wakfnama were set HTaside.TH
Proof of undue influence.—In dealing with cases of undue influence there are four
important questions
which the Court should consider, namely,
(2) whether it was improvident, that is to say, whether it shows so much improvidence as
to suggest the idea that the donor was not master of himself and not in a state of mind to
weigh what he was doing; (3)whether it was a matter requiring a legal adviser; and
(4) whether the intention of making the gift originated with the HTdonor.TH Lapse of
time and limitation: —Delay and acquiescence do not bar a party’s right to equitable
relief on the ground of undue influence; unless he knew that he had the right, or, being a
free agent at the time, deliberately determined not to inquire what his rights were or to act
upon HTthem.TH Lapse of time is not a bar in itself to such a relief. There must be
conduct amounting to confirmation of ratification of the transaction.
Consent of a party to transaction induced by suggestion of a fraudulent fact—Person so
deceived having means of discovering truth with ordinary diligence.
Effect—Where consent of a party was induced by the suggestion of a fact which was not
true, and was fraudulent, exchange deed so effected, held, would nevertheless be not
voidable where person deceived had means of discovering truth with ordinary
HTdiligence.TH
Question about exercise of undue influence—Pre-eminently a question of fact–
Concurrent finding on
question of soundness of mind of vendor and absence of undue influence over him—Not
open to challenge, when these findings arc fully sustainable on record—Constitution of
Pakistan, 1973, HTArticle 188.TH
Transfer of Property Act (IV of 1882), S. 54—Qanun-e-Shahadat Order (X of 1984),
Articles. 70 & 71—
Sale transaction—Undue influence—Proof—Oral depositions of witnesses produced by
plaintiff to prove mental incapacity of vendor and undue influence of vendees on such
vendor in respect of disputed
sale transaction, being not based on personal observations or knowledge of witnesses,
held, could not be relied upon—Important facts like exercise of undue influence on
vendor by vendees and mental incapacity of vendor which could affect sale transactions,
could, hardly be established by such unreliable oral HTevidence.TH
Defendant alleging execution under undue influence—Onus of proof of allegations—
Mere advantageous position not sufficient to prove undue influence.
The onus of providing that plaintiff was in a position to dominate the will of the
defendant is entirely on the defendant. Defendant is further called upon to prove that
plaintiff has used that position to obtain in unfair
advantage for himself. Merely showing that the plaintiff was in a more advantageous
position as compared to that of the defendant so as to be able to drive a benefit by
dominating the will of defendant is not
HTenough.TH
What is ‘Undue influence’–Facts to be proved to avoid contract for undue influence.
To prove that a contract was entered into under undue influence it must be established,
• that the relations subsisting between the parties should be such that one of them is
in a position to dominate the will of the other;
• that the dominant party obtains an unfair advantage over the other; and
• that the dominant party uses his dominant position to obtain that unfair advantage.
Free Consent- Definition of free consent as contained in section 14 of the Act is given
below for ready reference.
(5) mistake subject to the provisions of sections 20, 21, and 22.
Consent is said to be so caused when it would not have been given but for the existence
of such coercion, undue influence, fraud, misrepresentation or mistake.
We have already covered coercion and undue influence, now we shall look into other
factors.
According to Section 17 of the Act, “Fraud” means and includes any of the following
acts committed by a party to a contract, or with his connivance, or by his agent, with
intent to deceive another party thereto or his agent, or to induce him to enter into the
contract:
(1) the suggestion, as to a fact, of that which is not true by one who does not believe it to
be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(5) any such act or omission as the law specially declares to be fraudulent.
In a contract where consent caused/obtained by fraud etc is voidable at the option of party
whose consent is not free.
Illustration:
Mr. Aslam sells a car to Mr. Yasir. On inquiry by the purchaser, the seller / Mr. Aslam
informed that this car has completed the mileage of 15000Km. Later on it came to the
knowledge of purchaser that the car had actually completed the mileage of 40,000 Km. in
this case the agreement is voidable at the option of purchaser.
Mere silence is not always a fraud but when it is the duty to speak than silence
would lead to fraud.
For example, when a surgeon is going to perform a surgery, it shall be his duty to inform
the patient about the post surgery effects, if so enquired.
When a person is applying for insurance, it is his duty to provide all the information
which is required in the application form.
Illustrations
(a) A sells, by auction; to B, a horse which A knows to be unsound, A says nothing to B
about the horse’s unsoundness. This is not fraud in A
(b) B is A’s daughter and has just come of age. Here, the relation between the parties
would make it A’s duty to tell B if the horse is unsound.
(c) B says to A—”If you do not deny it, I shall assume that the horse is sound. A says
nothing. Here A’s silence is equivalent to speech.
(d) A and B, being traders, enter upon a contract. A has private information of a change
in prices which would effect B’s willingness to proceed with the contract. A is not bound
to inform B.
Fraud in general —Fraud is committed wherever one man causes another to act on a
false belief by a representation which he does not himself believe to be true. He need not
have definite knowledge or belief that it is not true. When fraud products damage it is
generally a wrong entitling the person defrauded to bring a civil action. Under the
Contract Act we are concerned with the effects of fraud only so far as consent to a
contract is procured by it. We have already pointed out that the result of fraudulent
practice may sometimes be a complete misunderstanding on the part of the person
deceived as to the nature of the transaction undertaken, or the person of the other party.
Such cases are exceptional. Where they occur, there is not a contract voidable on the
ground of fraud, but the apparent agreement is wholly void for want of consent, and the
party misled may treat it as a nullity even as against innocent third persons. But the
fraudulent party is of Course estopped from denying that there is a contract if the party
deceived finds it to be to his interest to affirm the transaction, which is a conceivable
though not probable case. In the same way the party deceived must be at liberty to treat
the transaction as a voidable contract if he thinks fit. No doubt many transactions have in
fact been so treated notwithstanding that under the law they might have been declared
wholly void.
The language of the Act throws no light on the relation of fraud to misrepresentation. It
might even be said to obscure it. That relation, however, may be very simply stated.
Fraud, as a cause for the rescission of contracts, is generally reducible to fraudulent
misrepresentation. Accordingly we say that misrepresentation is either fraudulent or not
fraudulent. If fraudulent it is always a cause for rescinding a contract induced by it; if not,
it is a cause of rescission only under certain conditions, which the definition of S. 18 are
intended to express. There are, however, forms of fraud which do not at first sight appear
to include any misrepresentation of fact, and sub-ss. 3, 4, and 5 are intended to cover
these. With regard to a promise made without any intention of performing it (subs. 3) it
may fairly be said that a promise, though it is not merely a representation of the
promiser’s intention to perform it, includes a representation to that effect. Some promises
are given more readily and willingly than others; but we accept promises only because we
believe them to be made in good faith, and no one would be content with a promise
which he believed the promiser to have no intention of keeping. Similarly it is fraud to
obtain properly, or the use of it, under a contract by professing an intention to use it for
some lawful purpose when the real intention is to use it for an unlawful purpose. Our
modern authorities have removed the difficulty which used to be felt in treating the
statement of a man’s intention as a representation of fact. “There must be a misstatement
of an existing fact, but the state of a man’s mind is as much a fact as the state of a man’s
mind at a particular time is, but if it can be ascertained it is as much a fact as anything
else.” Accordingly it is fraud to obtain a loan of money by misrepresenting the purpose
for which the money is wanted, even if there is nothing unlawful in the object for which
the money is actually wanted and used. In particular, it is well settled that buying goods
with the intention of not paying the price is a fraud which entitles the seller to rescind the
contract. On the whole, then, sub-s. (3) of the present section did not introduce any
novelty. Borrowing money with no intention of repaying it is cheating under the Penal
Code, S. 415.
The mention of “any other act fitted to deceive” in sub-s. (4) appears to be inserted
merely for the sake of abundant caution.
Acts and omissions specially declared to be fraudulent: —Sub-s. (5) applies to cases
in which the disclosure of certain kinds of facts is expressly required by law, and non-
compliance with the law is expressly declared to be fraud. Thus by S. 55 of the Transfer
of Property Act, 1882, the seller of immovable property is required to disclose to the
buyer “any material effect in the property or in the seller’s title thereto of which the seller
is, and the buyer is not, aware, and which the buyer could not with ordinary care
discover,” and the buyer to disclose to the seller “any fact as to the nature or extent of the
seller’s interest in the property of which the buyer is aware, but of which he has reason to
believe that the seller is not aware and which materially increases the value of such
interest,” and “omission to make such disclosures…is fraudulent,” and this, it seems,
even if the omission be due merely to oversight. Various dealings with property are made
voidable as being fraudulent, or declared to be fraudulent as against the transferor’s
creditors or assignees, by other enactment. But as these transfers of property cannot well
be employed as inducements to any other party to enter into any contract beyond such
agreement as is involved in the fraudulent transfer itself, they do not come within the
scope of the Contract Act, and we have no occasion to dwell upon them here.
Mere non-disclosure: —There are special duties of disclosure (of which we have just
seen an instance) in particular classes of contracts, but there is no general duty to disclose
facts which are or might be equally within the means of knowledge of both parties.
Silence as to such facts, as the Explanation to the present section lays down, is not
fraudulent. There is a well-known American case on this point arising out of the
conclusion of peace between Great Britain and the United States after the war commonly
known as the war of 1812. The contract was for the gale of tobacco: the buyer knew, but
the seller did not, that peace had been made; and on the seller asking if there was any
news affecting the market price, the buyer gave no answer. The Supreme Court of the
United States held that there was nothing fraudulent in his silence. But there are at least
two practical qualifications of this rule. First, the suppression of part of the known facts
may make the statement of the rest, though literally true so far as it goes, as misleading as
an actual falsehood. In such a case the statement is really false in substance, and the
willful suppression which makes it so is fraudulent. Secondly, a duty to disclose
particular defects in goods sold, or the like, may be imposed by trade usage. In such a
case omission to mention a defect of that kind is equivalent to express assertion that it
does not exist. The illustrations will now be easily understood.
Held by the court: The defendant in the circumstances of the case is entitled to repudiate
the contract on the ground of its being , vitiated by fraud.
Fraud—Burden of proof: Fraud involves firstly a finding in regard to facts. The burden
of proof in such a case is on the party who alleges fraud. The Courts have to be careful in
coming to a finding of fraud and should normally satisfy themselves that the finding is
based on reliable evidence. The Court or authority competent to re-open a case should
therefore satisfy itself from the material before it that the necessary situation as discussed
above prima facie prevails, before it decides to proceed with a complaint for fraud
According to section 17, an order obtained by fraud only voidable not void.
Illustrations
(a) A, intending to deceive B, falsely represents that 500 maunds of indigo are made
annually at A’s factory, and thereby induces B to buy the factory. The contract is
voidable at the option of B.
(c) A fraudulently informs B that A’s estate is free from encumbrance. B thereupon buys
the estate. The estate is subject to a mortgage. B may either avoid fire contract, or may
insist on its being carried out, and the mortgage-debt redeemed.
(d) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and
does conceal the existence of the ore from A. Through A’s ignorance B is enabled to buy
the estate at an under-value. The contract is voidable at the option of A.
Explanation
Scope of the section: —The section states the legal effect of coercion, fraud, and
misrepresentation, in rendering contracts procured by them voidable; the foregoing
sections have only laid down their respective definitions. Perhaps the most important
parts of the section, certainly those which need the most careful attention, are the
exception and the explanation. These mark, though hardly with practical completeness,
the limits within which the rule is applied. Before considering them we have to pause on
the second paragraph of the body of the section. It reads plainly enough at first sight, but
the thought does not seem to be really clear. The party entitled to set aside a voidable
contract may affirm it if he thinks fit. That is involved in the conception of a contract
being voidable. And if he affirms it, he may require the performance of the whole and
every part of it (subject to the performance in due order of whatever may have to be
performed on his own part) or, in default thereof, damages for non-performance (subject
to special causes of excuse, if any, which we are not now considering). If, as may well be
the case, the default is wholly or partly due to the non-existence of facts which the
defaulting party represented as existing, this party can obviously not set up the untruth of
his own statement by way of defence or mitigation; and, if the case is a proper one for
specific performance, and if it is in his power to perform the contract fully, though with
much greater cost and trouble than if his statement had been originally true, he will have
to perform it accordingly. Is anything more than this meant by the declaration of the
affirming party’s right to “be put in the position in which he would have been if the
representations made had been true”? There are obviously many cases in which such
restitution is not literally possible. Thus, if the owner of an estate subject to a lease for an
unexpired term contracts to sell it to a purchaser who requires immediate possession, and
conceals the existence of the lease. The purchaser cannot be put in the same position as if
the representation that there was no tenancy, or only such a tenancy as could be
determined at will, had been there. Cases may occur, on the other hand, where a seller of
land has held out, though not in express terms or willfully, an element of attractiveness or
security in the property offered for sale which it is in his power to realise by some act or
undertaking on or with regard to adjoining property of his own. But it is dangerous to
formulate general propositions in the law of contract from decisions in suits for the
specific performance of contracts relating to land, and it is not clear that the facts of the
decision in question are not reducible to misrepresentation or an ambiguous offer. Nor is
it certain that the present enactment can always be literally relied on. A sells a house to B,
and by some blunder of A’s agent the annual value is represented as being Rs. 2,000
when it is in truth only Rs. 1,000. According to the letter of the present paragraph, B, may
insist on completing the contract and on having the difference between the actual and the
stated value paid to him and his successors in title by A and A’s successors in title for all
time. Nothing short of that will put him “in the position in which he would have been if
the representations made had been true.” This is obviously not the intention of the
enactment.
Held by Rehman C.J. on reference from D.B: There is no provision in the Sale of
Goods Act, 1930, bearing on the effect of fraud, misrepresentation, coercion and undue
influence, on a contract of sale. I would be, therefore, disposed to hold that the relevant
provisions of the Contract Act on these questions continue to be applicable to contracts of
sale despite the provisions of section 13 of the Sale of Goods Act. This section also does
not contain any reference to cases of fraud etc, and apparently contemplates such cases as
involve a breach of a condition without fraud, misrepresentation and the like affecting the
formation of the contract itself, at its inception, if thus interpreted, there would be no
difficulty in holding that section 19 of the Contract Act can stand with section 13 of the
Sale of Goods Act, 1930. The result would be that in case of fraud and misrepresentation
etc. vitiating the contract unless there was a waiver on the part of the party affected, the
right of recision would not be lost.
VOID AGREEMENTS
Void Agreement
It has been defined in Sec. 2 (g) of the Contract Act which is reproduced below:
“An agreement not enforceable by law is said to be void”.
What agreements are contracts’ has been provided in section 10 of the Contract Act
which is reproduced below:
Agreements expressly declared void (section 10)
What agreements are contracts? All agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful
object, and are not hereby expressly declared to be void. .Nothing herein contained shall
affect any law in force in India, and not hereby expressly repealed, by which any contract
is required to be made in writing or in the presence of witnesses, or any law relating to
the registration of documents. The first paragraph of this section is developed and applied
by the more specific provisions of several following sections, which will be considered as
they occur.
Agreements in restraint of marriage (sec. 26)
Every agreement in restraint of the marriage of any person, other than minor, is void
Agreements in restraint of trade (sec. 27)
Every agreement by which any one is restrained from exercising a lawful profession,
trade or business of any kind, is to that extent void.
Exception 1: Saving of agreement not to carry on business of which good-will is sold. —
One who sells the good-will of a business may agree with the buyer to refrain from
carrying on a similar business, within specified local limits, so long as the buyer, or any
person deriving title to the goodwill from him, carries on a like business therein;
Provided that such limits appear to the Court reasonable, regard being had to the nature of
the business.
Restraint during term of service —An agreement of service by which an employee binds
himself, during the term of his agreement, not to compete with his employer directly or
indirectly is not in restraint of trade. If it were otherwise, “all agreements for personal
service for a fixed period would be void. An agreement to serve exclusively for a week, a
day, or even for an hour, necessarily prevents the person so agreeing to serve from
exercising his calling during that period for any one else than file person with whom he
so agrees. It can hardly be contended that such an agreement is void. In truth, a mall who
agrees to exercise his calling for a particular wage and for a certain period agrees to
exercise his calling and such an agreement does not restrain him from doing so. To hold
otherwise would, I think, be a contradiction in terms.” Such an agreement may be
enforced by injunction where it contains a negative clause, express of implied, providing
that the employee should not carry on business on his own account during the term of his
engagement. An employee contracted to serve as a weaving master for three years, and
agreed not to serve anyone else in India during the period. He left the service after one
year, and joined another mill as a weaving master. In terms the prohibition in the
agreement was not restricted to serving anyone else as weaving master, but was absolute.
The Court, however, in the light of the intention of the parties, construed the prohibition
as confined to the profession of weaving master, held the agreement reasonable, and
issued an injunction against the employee.
Earnest money—When may be recovered by purchaser. If the respondent who was the
seller is held guilty of breach of contract, obviously, the appellant who was the buyer
would be entitled to recover the money paid to the seller as purchase price, on account of
the failure of consideration. Thus, the buyer has a quasi-contractual right of claim the
recovery of the price, which is paid to the seller, for the seller, in breach of his
obligation, failed to pass good title to the good sold. The buyer in such case has a right to
sue in restitution to recover the price on the ground of total failure of consideration.
Similarly, if the seller failed to deliver the goods the buyer may recover the deposit he
paid to the seller. But in that case the buyer must terminate the contract. On the other
hand, even if the buyer was in default he can in certain circumstances, claim restitution of
the advance payment made to the seller, even if the seller justifiably terminates the
contract.
Scope of Section 27:
Section 27, prohibits all agreements in restraint of trade.
Agreements in restraint of legal proceedings void.(sec 28) Every agreement, by which
any party thereto is restricted absolutely from enforcing his rights under or in respect of
any contract, by tile usual legal proceedings in the ordinary tribunals, or which limits the
time within which he may thus enforce his rights, is void to that extent.
Exception I: Saving of contract to refer to arbitration dispute that may arise: — This
section shall not render illegal a contract by which two or more persons agree that any
dispute which may arise between them in respect of any subject or class of subjects shall
be referred to arbitration, and that only the amount awarded in such arbitration shall be
recoverable in respect of the dispute so referred.
Suits barred by such contracts. When such a contract has been made, a suit may be
brought for its specific performance, and if a suit, other than for such specific
performance, or for the recovery of the amount so awarded, is brought by one party to
such contract against any other such party in respect of any subject which they have so
agreed to refer, the existence of such contract shall be a bar to the suit.
Exception 2: Saving of contract to refer questions that have already arisen.—Nor shall
this section render illegal any contract in writing by which two or more persons agree to
refer to arbitration any question between them which has already arisen, or affect any
provision of any law in force for the time being as to references to arbitration.
Agreement in restraint of legal proceedings: —”This section applies to agreements which
wholly or partially prohibit the parties from having recourse to a court of law. If, for
instance, a contract were to contain a stipulation that no action should be brought upon it,
that stipulation would, under the first part of S. 28, be void, because it would restrict both
parties from enforcing their rights under the contract in the ordinary legal tribunals, and
so if a contract were to contain a double stipulation that any dispute between the parties
should be settled by arbitration, and that neither party should enforce his rights under it in
a court of law; that would be a valid stipulation so far as regards its first branch, viz., that
all disputes between the parties should be referred to arbitration.
“Rights under or in respect of any contract”— This section applies only to cases where a
party is restricted from enforcing his rights under or in respect of any contract. It
therefore presumably does not apply if the Court holds that the parties did not intend that
their agreement should give rise to any legal relations. It does not apply to cases of
wrongs or torts. Nor does it apply to decrees. The expression “contract” does not include
rights under a decree. The Code of Civil Procedure contains express provisions as to
adjustment of a decree and postponement of rights under a decree by mutual agreement
of parties of a suit.
Limitation of time to enforce rights under a contract —Under the provisions of this
section, an agreement which provides that a suit should be brought for the breach of any
terms of the agreements within a time shorter than the period of limitation prescribed by
law is void to that extent. The effect of such an agreement is absolutely to restrict the
parties from enforcing their rights after the expiration of the stipulated period, though it
may be within the period of limitation.
Uncertain agreements (sec. 29)
Agreements, the meaning of which is not certain, or capable of being made certain, are
void.
Illustrations
(a) A agrees to sell to B “a hundred tons of oil.” There is nothing whatever to show what
kind of oil was intended. The agreement is void for uncertainty.
(b) A agrees to sell to B one hundred tons of oil of a specified description, known as an
article of commerce. There is no uncertainty here to make the agreement void.
(c) A, who is a dealer in coconut-oil only, agrees to sell to B “one hundred tons of oil.”
The nature of A’s trade affords an indication of the meaning of the words, and A has
entered into a contract for the sale of one hundred tons of coconut-oil.
(d) A agrees to sell to B “all the grain at Rahimyar Khan.” There is no uncertainty here to
make the agreement void.
(e) A agrees to sell to B “one thousand maunds of rice at a price to be fixed by C.” As the
price is capable of being made certain, there is no uncertainty here to make the agreement
void.
(f) A agrees to sell to B “my white horse for rupees five hundred or rupees one
thousand.” There is nothing to show which of the two prices was to be given. The
agreement is void.
Explanation
S. 93 of the Evidence Act provides that when the language of a document is ambiguous
or defective no evidence can be given to explain or amend the document. Neither will the
Court undertake to supply defects or remove ambiguities according to its own notions of
what is reasonable; for this would be not to enforce a contract made by the parties, but to
make a new contract for them. The only apparent exception to this principle is that when
goods are sold without naming a price, the bargain is understood to be for a reasonable
price.
Where the defendants, describing themselves as residents of a certain place, executed a
bond and hypothecated as security for the amount “our property, with all the rights and
interest”, it was held that the hypothecation was too indefinite to be acted upon. The mere
fact that the defendants describe themselves in the bond as residents of a certain place is
not enough to indicate their property in that place as the property hypothecated. If they
had described themselves as the owners of certain property it would then have been
reasonable to refer the indefinite expression to the description. And where the defendant
passed a document to the Savings Bank whereby he promised to pay to the manager of
the bank the sum of Rs. 10 on or before a certain date “and a similar sum monthly every
succeeding month,” it was held that the instrument could not be regarded as a promissory
note, as it was impossible from its language to say for what period it was to subsist and
what amount was to be paid under it.
Similarly, where in an agreement for the sale of goods, the seller reserves the right to
vary the price at will, there is no contract. A compromise stating: “The following five
gentlemen shall decide all matters relating to our movable and immovable property” was
held to be too ambiguous to be enforced. An agreement to grant a lease when no date of
commencement is expressly or impliedly fixed cannot be enforced. But when the
commencement of a lease is dependent upon a contingency, which has occurred, the
agreement can be enforced. An agreement to pay a certain amount after deductions as
would be agreed upon between the parties is void for uncertainty. It has also been held
that an agreement to refer arbitration to a person, who has been described in uncertain
terms, is void. But where the proprietor of an indigo factory mortgaged to B all the indigo
cakes that might be manufactured by the factory from crops to be grown on lands of the
factory from the date of the mortgage up to the date of payment of tile mortgage debt, it
was held that the terms of the mortgage were not vague, and that the mortgage was not
void in law. It has been suggested that an agreement is too uncertain to be enforced if no
limit to the time of performance is expressed or can be inferred from the nature of the
case. This does not appear acceptable as a general proposition. Void agreement,
connotation of—Agreements meaning whereof is not certain or capable of being made
certain, held, would be void—Where both contracting parties are at consensus ad idem
with regard to essential terms of contract, any uncertainty or vagueness which is
incapable of being ascertained, would have effect of vitiating contract—In letter of
guarantee there was no vagueness or uncertainty, which could vitiate contract.
Lease—Agreement that rent will be fixed by Chief Officer of Corporation and will be
paid from date of possession—Not valid. The terms of the allotment of a shop by the
Karachi Municipal Corporation provided that the lease would commence from the date
from which possession will be handed over to the respondent.
Held; the agreement was not void under section 29 of the Contract Act, because the terms
of the agreement it was agreed between the parties that the respondent will pay such rent
as will be fixed by the Chief Officer and the lease will commence on delivery of
possession of the shop. These two terms were quite plain and simple.
Applicability—Agreement is void only when it is uncertain and unascertainable—
Agreement capable of being ascertained—Not void. Under section 29 of the Contract
Act, it is only when the meaning of an agreement is not certain or capable of being made
certain that the agreement becomes void.
When, therefore, the sellers told the buyers that each shipment shall be treated as if
separate contracts were made for it and they shall be bound to accept it even if this
shipment was only in respect of a part of the goods and the buyers agreed to this
condition, the agreement is not void as it is capable of being ascertained.
Vague contract—When not enforceable: Section 29 is based upon the principle that the
contracting parties must be shown to be at ad idem with reference to the essential terms
of the contract and, therefore, if there is any vagueness or uncertainty incapable of being
made certain the contract fails for vagueness. For, in that case the parties cannot be said
to agree to the same thing in the same sense. Therefore merely because the terms of the
arbitration agreement are capable of different and various interpretations it cannot ipso
facto be liable to be struck down as void. It can only be regarded as void for uncertainty
if its meaning is not certain or capable of being made certain as provided by section 29.
Terms of contract not ascertainable—Contract void and enforceable. Held: The document
being incomplete, as its terms are not ascertainable with reasonable certainty, it comes
within the mischief of section 29 and is void and by virtue of the provisions of S. 21 (a)
of the Specific Relief Act cannot be enforced specifically.
Wagering agreements (sec. 30)
Agreements by way of wager are void; and no suit shall be brought for recovering
anything alleged to be won on any wager, or entrusted to any person to abide the result of
any game or other uncertain event on which any wage is made Agreement by way of
wager void: (Sec. 30) Agreements by way of wager are void; and no suit shall be brought
for recovering anything alleged to be won on any Wager, or entrusted to any person to
abide the result of any game or other uncertain event on which any wager is made.
Exception in favour of certain prizes for horse-racing: This section shall not be deemed to
render unlawful a subscription or contribution, or agreement to subscribe or contribute,
made or entered into for or toward any plate, prize or sum of money, of the value or
amount of five hundred rupees or upwards to be awarded to the winner or winners of any
horse-race.
Section 294-A of the Pakistan Penal Code not affected: Nothing in this section shall be
deemed to legalise any transaction connected with horse racing, to which the provisions
of section 294-A of the Pakistan Penal Code apply.
Agreements contingent on impossible events void (sec 36): —Contingent agreements to
do or not to do anything, if an impossible event happens, are void, whether the
impossibility of the event is known or not to the parties to the agreement at the time when
it is made.
Illustrations
(a) A agrees to pay B 1,000 rupees if two straight lines should enclose a space. The
agreement is void.
(b) b) A agrees to pay B 1,000 rupees if B will marry A’s daughter C. C was dead at the
time of the agreement. The agreement is void.
(c) The two last foregoing sections explain themselves. We note that somewhat similar
provisions as to transfers of property made subject to conditions occur in the Transfer of
Property Act, 1882, see especially Ss. 25-34. A conditional transfer of property, though it
may be, and often is, made in pursuance of a contract, is not, of course, itself a contract. It
was therefore necessary to lay down distinct and independent, though more or less
analogous, rules for such transactions.
Agreements to do impossible acts (sec. 56)
An agreement to do an act impossible in itself is void.
Contingent Contract (Sec. 31)
Contingent contract shall be explained in detail in later discussion on the topic.
A contingent contract is a contract to do or not to do something, if some event, collateral
to such contract, does or does not happen.
Illustrations:
M/S ABC insurance company contracts with Mr. Z to pay Rupees 500,000 if his car is
lifted by thieves.
Contract between the client and his counsel regarding payment of agreed professional fee
if the suit turns out to be successful would also come under the ambit contingent contract.
“Contingent contract” has been defined in section 31 of the Contract Act which is
reproduced below:
A “contingent contract” is a contract to do or not to do something, if some event,
collateral to such contract, does or does not happen.
Illustrations:
• M/S ABC insurance company contracts with Mr. Z to pay Rupees 500,000 if his
car is lifted by thieves.
• Contract between the client and his counsel regarding payment of agreed
professional fee if the suit turns out to be successful
• Contracts to pay B Rs. 10,000 if B’s house is burnt.
• It must be unconditional;
• It must be made at a proper time and place, and under such circumstances that the
person to whom it is made may have a reasonable opportunity of ascertaining that
the person by whom it is
made is able and willing there and then to do the whole of what he is bound by his
promise to do;
If the offer is an offer to deliver anything to the Promisee, the Promisee must have a
reasonable opportunity of seeing that the thing offered is the thing which the Promisor is
bound by his promise to delivery.
An offer to one of several joint promises has the same legal consequences as an offer to
all of them Illustration X enters into a contract on 1P stP July 2007 to supply 1000 tons of
rice to Y at his warehouse duly specified in the contract. X should ensure to make
available the specified quantity of rice on due date under such circumstances that Y has
reasonable opportunity to satisfy himself regarding the quantity and quality of the rice.
Performance of Contract
When a party to a contract has refused to perform, or disabled himself from performing
his promise in its entirety, the Promisee may put an end to the contract, unless he has
signified, by words or conduct, his acquiescence in its continuance.
Illustrations
(a) A, a singer,-enters into a contract with B, the manager of a theatre, to sing at his
theatre two nights in every week during the next two months, and B engages to pay her
100 rupees for each night’s performance: On the sixth night A willfully absents herself
from the theater. B is at liberty to put an end to the contract.
(b) A, a singer, enters into a contract with B, the manager of a theatre, to sign at his
theatre two nights in every week during the next two months, and B engages to pay her at
the rate of 100 rupees for each night. On the sixth night A willfully absents herself. With
the assent of B, A signs on the seventh night. B has signified his acquiescence in the
continuance of the contract, and cannot now put an end, to it, but is entitled to
compensation for the damage sustained by him through A’s failure to sing on the sixth
night.
(c) Mr. X a cricket player enters into contract with cricket board to play 5 tests and 4 one
day international matches as per schedule against payment of agreed amount. Mr. X
willfully refuses to play in second one day international. The cricket board has a right to
put an end to the contract.
Explanation
It may be further observed, with regard to the illustrations, that it would be rash to extend
them. In reading the illustrations to the Act, so far as they bear on questions of
construction, it must be assumed that there are not any terms beyond those stated; the
agreements tact with in practice will almost always contain special terms, which must be
considered.
Where two transactions are separate, the repudiation of one cannot affect the other.
A buyer who has refused to receive goods on the ground that they were not tendered
within the agreed time cannot afterwards change his ground and raise the objection that in
fact the goods were not according to contract; for the election to rescind, once made, is
conclusive.
It may be worth while to add that an unsuccessful attempt to perform a contract which
does not disable the promisor from still performing it effectually within the time limited,
or a reasonable time, and does not cause any damage to the promisee, cannot be treated as
a refusal. Such an attempt does not itself affect the legal rights of the parties at all.
“Disabled himself from performing”—Disability due to the party’s own fault must be
distinguished from inability to perform a contract. See Specific Relief Act, S. 14, as to
the effect of inability of a party to perform the whole of his part of a contract. See also S.
24 of the same Act, which enacts, amongst other things, that specific performance of a
contract cannot be enforced in favour of a person who has become “incapable” of
performing any essential term of a contract that on his part remains to be performed.
It is very old law that if a promisor disables himself from performance, even before the
time for performance has arrived; it is equivalent to a breach.
“Promisee may put an end to the contract.”—The promisee, if he pleases, may treat
the notice of intention as inoperative, and await the time when the contract is to be
executed, and then hold the other party responsible for all the consequences of non-
performance; but in that case he keeps the contract alive for the benefit of the other party
as well as his own; he remains subject to all his own obligations and liabilities under it,
and enables the other party not only to complete the contract, if so advised,
notwithstanding his previous repudiation of it, but also to take advantage of any
supervening circumstances which would justify him in declining to complete it.
On the other hand, the promisee may, if he thinks proper, treat the repudiation of the
other party as a wrongful putting an end to the contract, and may at once bring his action
as on a breach of it; and in such action he will be entitled to such damages as would have
arisen from the non-performance of the contract at the appointed time, subject, however,
to abatement in respect of any circumstances which may have afforded him the means of
mitigating his loss.” When the promisee has so determined his choice, then, whether he
sues for damages or not, it is not open to the promisor to go back on his refusal and treat
the contract as subsisting. Similarly if he freely and with full knowledge elects not to
accept the repudiation, he cannot go back on this election, and sue before the date of
performance has arrived. If the law lays down a particular form in which repudiation
must take place, it is not open to the promisee to put an end to the contract in any other
way.
Arbitration clause: —When a contract is terminated by acceptance of the repudiation,
an agreement to refer all disputes to arbitration does not become void.
Held: The repudiating party is not prevented from invoking the arbitration clause in the
contract for the purpose of setting all questions to which his repudiation has given rise to.
It is not correct to say that the arbitration clause will be given effect in the agreement but
not when the contracts ended by something with reference to the agreement.
Breach of condition, waiving of—An insurer can waive breach of condition in writing or
orally.
If it appears from the nature of the case that it was the intention of the parties to any
contract that any promise contained in it should be performed by the Promisor himself,
such promise must be performed by the Promisor. In other cases, the Promisor or his
representatives may employ a competent person to perform it.
Illustration: A contract between X and Y for the sale/ purchase of goods. X being a
seller is required to deliver the goods at the agreed place and according to the time fixed
for delivery against payment of the agreed amount by Y. In case X dies before the fixed
time, it is the duty of the representatives to perform the promise or to engage some other
person for the performance of the said promise.
Illustration: Mr. Aslam enters into a contract with Mr. Zaighum, a renowned painter for
painting the picture of a monument. In this case Mr. Zaighum must perform; he cannot
assign this responsibility to some other person.
Person by whom promise is to be performed—If it appears from the nature of the case
that it was the intention of the parties to any contract that any promise contained in it
should be performed by the promisor himself, such promise must be performed by the
promisor. In other cases the promisor or his representatives may employ a competent
person to perform it.
Additional Illustrations
(a) A promises to pay B a sum of money. A, may perform this promise either by
personally paying the money to B, or by causing it to be paid to B by another; and, if A,
dies before the time appointed for payment, his representatives must perform the promise,
or employ some proper person to do so.
(b) A, promises to paint a picture for B, A must perform this promise personally.
Explanation
Personal contracts: —Contracts involving the exercise of personal skill and taste, or
otherwise founded on special personal confidence between the parties, cannot be
performed by deputy. But it is not always easy to say whether a particular contract is, in
this sense, personal or not, or what is an adequate performance of a personal contract.
A contract for personal agency or other service entered into with partners is generally
determined by the death of a partner, or it may be more accurate to say that it is not held
to continue with the surviving partner unless there is something to show a distinct
intention to that effect. On the other hand, a contract with a firm which has nothing really
personal about it so far as regards the partners, for example, a contract to perform at a
music-hall belonging to the firm, is not generally determined by the death of one member
of the firm, especially if the individual members of the firm were not named in the
contract and not known to the other party. Every case must really be judged on its own
circumstances.
When a Promisee accepts performance of the promise from a third person, he cannot
afterwards enforce it against the Promisor.
Example: if a consignee under the contract recovers the loss from an insurance company,
he does not have the right to sue the supplier of goods for the loss/ damages caused to
him.
When two or more persons have made a joint promise, then unless a contrary intention
appears by the contract, all such persons during their joint lives, and after the death of any
of them, his representative jointly with the survivor or survivors, and after the death of
last survivor, the representatives of all jointly, must fulfill the promise.
Illustrations:
1. Mr. Aslam, Mr. Yasir and Mr. Usman jointly promise to pay Rs. 100,000 to Mr.
Kamal. Mr. Kamal has a right to demand the said amount either from Mr. Aslam or Mr.
Yasir or Mr. Usman.
2. Mr. Aslam, Mr. Yasir and Mr. Usman jointly promise to pay Rs.150,000 to Mr.Omar.
Mr. Usman is compelled to pay the entire amount of Rs 150,000. Mr. Aslam has been
declared insolvent by court of law but his assets are sufficient to pay 1/3rd of the debt. Mr.
Usman is entitled to receive Rs. 50,000 from the estate of Mr. Aslam and 50,000 from
Mr. Yasir.
3. Mr. Aslam, Mr. Yasir and Mr. Usman have jointly promised to pay Rs. 300,000 to Mr.
Omar. Mr. Aslam is unable to pay any amount and Mr. Yasir is compelled to pay the
entire amount. Mr. Yasir is entitled to receive Rs 150,000 from Mr. Usman.
4. Mr. Aslam, Mr. Yasir and Mr. Usman have jointly promised to pay Rs. 900,000 to Mr.
Omar. Mr. Aslam and Mr. Yasir are also the sureties for Mr. Usman. Mr. Usman fails to
pay then Mr. Aslam and Mr. Yasir are compelled to pay the entire amount. Mr. Aslam
and Mr. Yasir have the right to recover the amount from Mr. Usman.
Devolution of joint liabilities: (Sec. 42): —When two or more persons have made a
joint promise, then, unless a contrary intention appears by the contract, all such persons,
during their joint lives, and after the death of any of them, his representative jointly with
the survivor or survivors, and after the death of the last survivor, the representatives of all
jointly, must fulfill the promise.
Where, by the contract, a Promisor is to perform his promise without application by the
Promisee, and no time for performance is specified, the engagement must be performed
within a reasonable time the question “what is a reasonable time” is, in each particular
case, a question of fact.
Explanation: —The question “what is a reasonable time” is, in each particular case, a
question of fact.
Engagement: —The word “engagement” in this section is a survival from the language
of the Original draft, in which, for some reason not easy to understand, it is constantly
used instead of “agreement” or “promise.” Here it is synonymous with “promise”.
Reasonable time: —It is difficult to understand why decisions should be reported on the
question of what is a reasonable time, which is declared by the Act itself to be always a
question of fact; but, having been reported, they must be mentioned.
Breach of contract (sec. 46 & 73) —Party not bound to allow other party time to
perform the contract even when time is not the essence of the Contract—Damages.
The maps printed by the defendant under the contract were not according to specification
and were rejected by the plaintiff. The plaintiff did not allow the defendant to print fresh
maps, and claimed damages.
Held; if goods are not according to specification, the buyer can reject them and that with
his rejection the contract comes to an end.
The plaintiff, therefore, had a right of repudiating the contract and no question of reprint
arises.
Sale of land (sec 46) —Time is not of the essence of the contract of sale. Ordinarily
time is not of the essence of the contract in an agreement for sale of land.
BREACH OF CONTRACT
We have already discussed the compensation for failure to discharge obligation
resembling those created by
contract and explanation thereof, the same is reproduced below for reference.
Remedies for breach of contract
Following remedies are available to the aggrieved party:
We have already discussed the first two remedies, rest of the remedies available for
breach of contract are discussed here under.
Suit for specific performance
In certain cases where damages are not preferable option as these may not provide
adequate remedy, the court may direct the party in default to fulfill the contract. The
aggrieved party has the right to file a suit for specific performance.
Instances where suit for specific performance can be filed before the Court:
Where monetary compensation may not provide adequate relief to the aggrieved party,
• Indemnifier (Promisor)
• Indemnity holder/Indemnified (Promisee)
There may be many objects for which a guarantee is required to be furnished; some of
these are enumerated below:
1. To avail loan
3. To get employment
To avail loan
Mr. Aslam availed a loan of Rs 1 million from XYZ
Bank. The said bank asked the loanee, Mr. Aslam to
furnish a guarantee from a credit worthy party. Mr.
Aslam requested Mr. Akram to furnish guarantee
for the said loan in favor of XYZ bank. Mr. Akram
furnished the guarantee as desired by the bank. In
case of default by the loanee (Mr. Aslam), the
guarantor/ surety (Mr. Akram) shall be liable to pay
the amount in default.
To make credit purchases
AQ brothers make credit supplies to Hilton enterprises.
Under the agreement, Hilton enterprises furnished
guarantee of Mr. Suhail. Mr. Suhail shall be liable
to make payments to M/S AQ brothers in case of
default by Hilton enterprises.
To get employment
M/S XYZ bank hired the services of Mr. Salman as cashier and asked him to furnishing a
guarantee to the employer Rs. 100,000.
Creditor
Principal Debtor
Primary Contract
There is a Primary contract between Principal Debtor
and Creditor.
guarantor, held, would be deemed to be guarantor far all intent and purposes—Plea of
guarantor that he had signed document of guarantee not in personal capacity but in
official capacity would be of no effect where such guarantor did not testify before Court
that he had not executed letter of guarantee in his personal capacity.
Kinds of Guarantee:
Specific Guarantee or (Ordinary Guarantee):
This guarantee is restricted to a specific transaction on
engagement, for example, availing a loan from a
bank.
Continuing Guarantee:
Such guarantee covers a series of transactions. For
example guarantee furnished to a supplier for
making supplies to a particular person/ business
during a specified period, say one year.
Illustrations
(a) A in consideration that B will employ C in collecting the rent of B’s zamindari,
promises B to be responsible to the amount of 5,000 rupees, for the due collection and
payment by C of those rents. This is a continuing guarantee.
(b) A guarantees payment to B, a tea-dealer, to the amount of Rs. 100, for any tea he may
from time to time supply to C B supplies C with tea to above the value of Rs. 100, and C
pays B for it. Afterwards B supplies C with tea to the value of Rs. 200. C fails to pay. The
guarantee given by A was a continuing guarantee, and he is accordingly liable to B to the
extent of Rs. 100.
Comments
In construing the language of the parties the whole of their expressions must be looked to,
not merely the operative words. Thus the followings words were held to show that a
guarantee, which otherwise might have been confined to a single transaction, was
intended to be continuing: “Having every confidence in him, he has but to call upon us
for a cheque and have it with pleasure for any account he may have with you; and when
to the contrary we will write you.”
Illustrations
Comments
Future transactions: —The words “future transactions” must be taken to imply that the
operation of this section is confined to cases where a series of distinct and separate
transactions is contemplated. It is otherwise in the case of an entire consideration.
“Where a continuing relationship is constituted on the faith of a guarantee the guarantee
cannot be annulled during the continuance of that relationship”; and as the surety could
not determine it himself by notice, so his death does not relieve his estate from liability;
the nature of the transaction implies a contract to the contrary under S. 131.
Notice: —The mere denial of liability by the surety in a previous suite instituted by the
creditor against him and the principal does not operate as a notice under this section.
Essentials of Bailment:
Contract
There is an underlying contract between the bailor and bailee, there may
be an explicit contract or it may be an implied contract.
Specific purpose
Delivery of goods
No change of ownership
When the purpose for which the goods are delivered is completed, the
goods must be returned in the original form or modified form as per
instructions of the bailor.
For the benefit of the bailor– Mr. Yasir, while going out of city handed
over some precious household articles to Mr. Usman for safe
custody, without any obligation to pay any fee/ charges. It is a
bailment for the benefit of the bailor.
For the benefit of the bailee—Mr. Umer handed over his car to Mr. Ahsan,
as he was in need of conveyance for few days. Mr. Umer handed
over this car without any obligation on the part of Mr. Ahsan to pay
any rent / charges for the use of this car. This bailment is exclusively
for the benefit of the Mr. Ahsan, the bailee.
For the benefit of bailor and bailee—Mr. Ahmad availed locker facilities
from M/S XYZ bank ltd. Under the terms and conditions of the
contract Mr. Ahmad was required to pay Rs.1000/ annual fee on
account of availing this facility. This contract is for the benefit of
parties, the bailor and the bailee.
respect of the goods. He is responsible for the safe delivery of the goods bailed with him
and in default is responsible to the bailor for any loss of the goods.
Goods given to a person by bank on trust receipt—Person becomes a bailee—Liable
for criminal breach of trust in case of non-accounting of goods. The execution of a
trust receipt is a recognised mode of making a person bailee of the goods and in such
circumstances the Bank must be deemed to be in possession or control of the goods. The
validity and efficacy of such instruments of trust are now generally acknowledged. If a
person, who has signed such a trust receipt, fails to hand over to the Bank the sale-
proceeds of the goods sold, the former would be liable for criminal breach of trust.
In all cases of bailment the bailee is bound to take as much care of the goods bailed to
him as a man of ordinary prudence would, under similar circumstances, take of his own
goods of the same bulk, quality and value as the goods bailed
Where due to long delay in transit, goods carried by Railway were damaged. Held:
Although the burden of establishing want of care on the part of’ the Railway lies on the
consignor yet it is the duty of the railway to supply the entire material from which the
amount of care that is taken is ascertained. The Railway pleaded that the delay was
caused due to unavoidable circumstances but no material was supplied in support of this
plea; Therefore the presumption of want of due Care would arise against the Railway.
The ship-owner committed a breach of the obligation contained in the bill of lading and
as such the consignee was entitled to recover damages.
Comments
The bailee tendering a contract of pledge does not become owner, but, as having
possession and right to possess, he is said to have a special property. Any kind of goods,
documents, or valuable things of a personal nature may be pledged. Delivery is necessary
to complete a pledge; it may be actual or constructive. It is sufficient if the thing pledged
is delivered under the contract within a reasonable time of the lender’s advance being
made.
Contract of Agency
The legal relation between a merchant in one country and a commission agent in other is
that of principal and agent, and not seller and buyer, though this is consistent with the
agent and principal, when the agent consigns the goods to the principal, being in a
relation like that of seller and buyer for some purposes. A merchant, therefore, in this
country who orders goods through a firm of commission agents in Europe cannot hold the
firm liable as if they were vendors for failure to deliver the goods. And the result is the
same if the goods are ordered through a branch in this country of a firm of commission
agents in another country. For the same reason, where a commission agent buys goods for
a merchant at a price smaller than the limit specified in the indent, he cannot charge any
price higher than that actually paid by him, except in the case of a custom to the contrary.
An agent may have, and often has, in fact, a large discretion, but he is bound in law to
follow the principal’s instructions provided they do not involve anything lawful. To this
extent an agent may be considered its a superior kind of servant; and a servant who is
entrusted with any dealing with third persons on his master’s behalf is to that extent an
agent. But a servant may be wholly without authority to do anything as an agent, and
agency, in the case of partners, even an extensive agency, may exist without any contract
of hiring and service.
2. By operation of law
3. By estoppel
4. By ratification
Agency by Consent:
Consent may be express or implied.
Express Agency:
Such agency is created by words either spoken or written.
In business transactions, this relationship is usually
established through writing an agreement
Implied Agency:
An authority is referred to as implied when it is inferred
from the conduct of the parties or circumstances of the
case. Definitions of express and implied authority as
contained in section 187 of the Act are given below:
“An authority is said to be express when it is given by
words spoken or written. An authority is said to be
implied when it is to be inferred from the
circumstances of the case; and things spoken or written,
or the ordinary course of dealing, may be accounted for
circumstances of the case.”
CONTRACT OF AGENCY
As already discussed, agency may be created in the following ways:
1. By consent
2. By operation of law
3. By estoppel
4. By ratification
We have already discussed the creation of an agency by the consent of the parties,
remaining ways of creation of agencies are discussed below:
Agency by Operation of Law:
Agent’s authority in an emergency (section 189)
An agent has authority, in an emergency; to do all such acts for the purpose of protecting
his principal from loss as would be done by a person of ordinary prudence, in his own
case, under similar circumstances.
Illustration:
Mr. Aslam, a fruit merchant, shipped fruits by truck from Lahore to DG Khan. The truck
on its way to DG Khan met an accident. The truck driver could not establish contact with
Mr. Aslam despite best efforts. There was danger that fruits would perish, as such the
truck driver decided to sell the fruits at the market rate. The relationship of agency shall
be governed under the provision of section 189.
Illustrations
(a) An agent for sale may have goods repaired if it be necessary.
(b) A consigns provisions to B at Karachi with directions to send them immediately to C
at Quetta. B may sell the provisions at Karachi if they will not bear the journey to Quetta
without spoiling.
Comments
If goods are perishable and perishing, the agent may deviate from his instructions as to
the time or price at which they are to be sol as has been explained through the above
illustrations.
Agency by Estoppel
Agency by estoppel refers to a situation when the words or conduct of the principal
creates an impression in the minds of third party that agent’s authority is greater than the
authority actually vested in him. And the third party under this impression enters into an
agreement with the agent.
Illustration:
Due to the conduct of Mr. Aslam (principal), Mr. Salman (third party) believes that Mr.
Kaleem is an agent of Mr. Aslam and under this impression Mr. Salman enters into an
agreement with Mr. Kaleem.
The following situations may emerge from this scenario:
Mr. Aslam terminated the agency relationship with Mr. Kaleem, however this was not in
the knowledge of Mr. Salman and he continued his commercial dealings with Mr.
Kaleem. Under the principle of estoppel, Mr. Aslam cannot claim that Mr. Kaleem is not
his agent, as far as these transactions are concerned.
Mr. Salman enters into an agreement with Mr. Kaleem. The transaction is in the
knowledge of Mr. Aslam. Mr. Aslam does not intimate Mr. Salman that Mr. Kaleem is
not his agent. Mr. Aslam under the principle of estoppel cannot claim that Mr. Kaleem is
not his agent.
Mr. Salman was entering into business dealings with Mr. Kaleem, treating Mr. Kaleem as
an authorized agent of Mr. Aslam. Mr. Kaleem entered into some agreements which were
beyond the authority vested in him by the Principal, Mr. Aslam. Mr. Salman is not aware
of this fact. Mr. Aslam (Principal) under the principle of estoppel cannot claim that he
cannot own the acts of his agent, Mr. Kaleem which are beyond his (agent) authority.
Agency by Ratification:
Concept of ratification is contained in Sec. 196
Sec. 196- Right of person as to acts done for him without his authority: where acts are
done by one person on behalf of another, but without his knowledge or authority, he may
elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if
they had been performed by his authority.
Illustration:
Mr. Fahad, an agent of Mr. Salman lends Rs 100,000 to Mr. Kaleem. Mr. Kaleem is
paying monthly profits to Mr. Fahad, who has rendered accounts in this respect to the
principal, Mr. Salman. By accepting the profits, Mr. Salman’s conduct implies a
ratification of the amount of loan provided by his agent, although without his authority.
Conditions of ratification: “On behalf of another
Ratification must be by the person for whom the agent professes to act. That an act done
for another by a person not assuming to act for himself, but for such other person, though
without any precedent authority whatever, becomes the act of the principal; if
subsequently ratified by him, is the known and well-established rule of law. In that case
the principal is bound by the act, whether it be for his detriment or his advantage, and
whether it be founded on a tort or a contract, to the same extent as by, and with all the
consequences which follow from, the same act done by his previous authority. But where
A does an act as agent for B without any communication with C, C cannot, by afterwards
adopting that act, make A his agent and thereby incur any liability, or take any benefit,
under the act of A. Ratification in the proper sense of the term, as used with reference to
the law of agency, is applicable only to acts done on behalf of the ratifier. And this rule is
recognised in S. 196 of the Contract Act. Ratification can be express or implied from
conduct.
A ratification of the unauthorised contract of an agent can only be effectual when the
contract has been made by the agent avowedly for, or on account of, the principal, and
not when it has been made on account of the agent himself A man cannot adopt by
ratification an act which was not authorised by him at the time and did not purport to be
done on behalf of any principal.
Since ratification is in law equivalent to a previous authority, a person not competent to
authorise an act cannot give it validity by ratifying it.
Ratification must be by an existing person on whose behalf the contract might have been
made at the time. Thus a newly-formed company cannot ratify an act done in its name
before it was incorporated. And where a time is limited for doing an act, and A does it on
behalf of B, but without his authority, within that time, B can ratify it only before the
time has expired.
The person on whose behalf an act purports to be done need not be individually known to
the agent; it is enough if he is ascertainable as owner of specified property or the like. A
man may affect an insurance on behalf of all persons interested, and any such person may
adopt the contract of insurance for his own share by ratification. A bailiff may receive the
rent of land on behalf of the unknown heirs of the last owner in possession, and those
heirs, when their title is ascertained, can ratify his acts.
“Acts done without knowledge or authority”—An act done by an agent in excess of his
authority may also be ratified. But there is a wide distinction between ratifying a
particular act which has been done in excess of authority and conferring a general power
to do similar acts in future. Therefore the ratification by a company of certain acts done
by its directors in excess of the authority given to them by the articles of the company
does not extend the authority of the directions so as to authorise them to do similar acts in
future.
Retrospective effect –Ratification, if effective al all, relates back to the date of the act
ratified. If an action is brought in a man’s name without his knowledge, he may adopt the
proceedings and make them good at any time. The rule goes so far that if A makes an
offer to B which Z accepts in B’s name without authority, and B afterwards ratifies the
acceptance, an attempted revocation of the offer by A in the time between Z’s acceptance
and B’s ratification is inoperative. So long as the professed agent purports to act on
behalf of the principal, it is immaterial whether in his own mind he intends the principal’s
benefit or not, and what his real motive and intention may be; nor does it make any
difference if the third party discovers before ratification that the agent meant to keep the
contract for himself. In fact, the third party gets by the ratification exactly what he
bargained for.
But if Z pays money to B as in satisfaction of A’s debt, and B, afterwards discovering
that Z had no authority, returns him the money by agreement between them. A can no
longer adopt the payment and rely on it as a discharge. A man is not bound to accept
payment of a debt, or satisfaction of any other obligation from a stranger to the contract,
though, if B had accepted the payment with knowledge of Z’s want of authority, or
acquieseed in it after he obtained that knowledge, he would have been estopped from
denying Z’s authority as against A.
If an offer is accepted by an agent subject to ratification no contractual relationship with
the principal comes into existence until ratification, and therefore up to that moment the
offer can be withdrawn. It has been held that where a partner without authority to do so
referred a dispute between a third party and the partnership to arbitration, and the other
partners did not ratify the submission to arbitration, the award cannot be enforced even
against the partner who so referred the dispute. It is submitted that the liability is joint
and several, and the partner submitting the matter to arbitration is bound by the award.
What acts cannot be ratified—A transaction which is void ab initio cannot be ratified.
This is illustrated by a line of cases in company law marking the distinction between
irregularities capable of being made goods if the act is ratified by a general meeting, or
the whole body of shareholders, and acts not within the company’s objects as defined by
its original constitution, and therefore incapable of being made binding on the company
by any ordinary means known to the law. A forged signature cannot be ratified; but a
person whose signature has been forged may be estopped from denying that a signature is
his, if for example, he has by his conduct induced the holder of a bill of cheque to alter
his (the holder’s) position.
Ratification would be effective though it is made subsequently—Ratification validates act
already performed—It relates back to time of inception of transaction and carries a
complete retrospective efficacy—Islamic Law as to ratification stated in judgment.
Principal—Ratification of acts by—Definite rule of ratification of acts of person by
another person on whose behalf the acts laid down in S. 196 of Contract Act—Held:
Principle of law enunciated in such section to equally apply to acts of attorney if ratified
by principal.
Only the civil liability created by act of an agent acting for his principal ratified and not a
criminal liability—Guarantee being a forged document—No ratification therefore
permissible this being a criminal liability.
Principle of ratification of contract—Scope of—Acts done by one person on behalf of
another without such person’s knowledge or authority—Principal might ratify or disown
acts done by agent on his behalf—Exception to such ratification was where right or
interest of third person was involved—Agent having entered into transaction of exchange
in favour of vendee, not having been specifically authorized to do so—Act of ratification
by principal had effect of terminating right of pre-emption vested in pre-emption—Even
if such exchange transaction was validated by principal, no benefit of exchange, held,
could be extended to vendee.
Agent.—Act of—Ratification of—Person authorised by principal to act as his attorney or
agent in respect of particular properly—Scope of such authority described in instrument
—Held: Any incidental action to property of such attorney or agent to be binding on
principal only when he accepts, acknowledges or undertakes by ratifying same—In
absence of ratification of action constituting transgression of authority, principal not to be
held responsible for such action of—Even unauthorised action of attorney in suit or
proceeding when ratified by principal (also) to be upheld.
Agent bidding at auction for his principal without duly executed power of attorney—
Principal ratifying act of agent—Auction is valid and effective. Where the agent who
made a bid at an auction for his principal did not have a duly executed power of attorney
as was required by the rules of auction and the transfer by such auction was therefore
challenged. Held: If the principal is named and accepts the action of his agent, even
though the same was not covered by a duly executed power of attorney at the time of the
auction, the matter would be fully covered by the doctrine of ratification, as embodied in
section 196 of the Contract Act, 1872.
Overdraft granted unauthorisedly by Manager of Bank—Bank charging interest on
amount and suing on hypothecation—Act of agent stands ratified by conduct.
Servants, unauthorised acts of—May be ratified by Master.—These sections are not
limited to acts of agents but they lay down general principles which are equally
applicable to a servant who is generally his master’s agent for some purpose, the extent of
the agency depending on the duties and position of the servant.
Unauthorised act of agent when implied ratification by conduct is presumed—No
ratification by conduct where acts are disapproved: To constitute implied ratification by
conduct of acts previously unauthorised, the conduct of the principal must be such as to
lead to the necessary inference that there was an unqualified and binding adoption of
those acts by him. Where the Board categorically declined to approve of the alleged
contract despite recommendations by the Managing Director, there can be no implied
ratification by conduct of those acts.
Effect of Ratification: Sec. 199
Effect of ratifying unauthorized act forming part of a transaction is discussed
below:
A person ratifying any unauthorized act done on his behalf ratifies the whole of the
transaction of which such act formed a part.
It is obvious that a man cannot at his own choice ratify part of a transaction and
repudiates the rest. The only possible exception is in the case of the part repudiated being
wholly for the principal’s benefit, which is not likely to occur. The general rule is that,
where ratification is established as to a part, it operates as a confirmation of the whole of
that particular transaction of the agent.
Rights and Obligations of different parties as a result of Ratification:
We can conclude that parties to a contract of agency have the following rights and
obligations:
1. Principal may sue the third party and third party can also sue the principal.
2. No liability shall be incurred by the agent to third party
3. Agent not liable for exceeding his authority
4. Principal is required under law to pay reasonable remuneration to the agent.
1. By consent
2. By operation of law
3. By estoppel
4. By ratification
We have already discussed the creation of an agency by the consent of the parties,
remaining ways of creation of agencies are discussed below:
Agency by Operation of Law:
Agent’s authority in an emergency (section 189)
An agent has authority, in an emergency; to do all such acts for the purpose of protecting
his principal from loss as would be done by a person of ordinary prudence, in his own
case, under similar circumstances.
Illustration:
Mr. Aslam, a fruit merchant, shipped fruits by truck from Lahore to DG Khan. The truck
on its way to DG Khan met an accident. The truck driver could not establish contact with
Mr. Aslam despite best efforts. There was danger that fruits would perish, as such the
truck driver decided to sell the fruits at the market rate. The relationship of agency shall
be governed under the provision of section 189.
Illustrations
(a) An agent for sale may have goods repaired if it be necessary.
(b) A consigns provisions to B at Karachi with directions to send them immediately to C
at Quetta. B may sell the provisions at Karachi if they will not bear the journey to Quetta
without spoiling.
Comments
If goods are perishable and perishing, the agent may deviate from his instructions as to
the time or price at which they are to be sol as has been explained through the above
illustrations.
Agency by Estoppel
Agency by estoppel refers to a situation when the words or conduct of the principal
creates an impression in the minds of third party that agent’s authority is greater than the
authority actually vested in him. And the third party under this impression enters into an
agreement with the agent.
Illustration:
Due to the conduct of Mr. Aslam (principal), Mr. Salman (third party) believes that Mr.
Kaleem is an agent of Mr. Aslam and under this impression Mr. Salman enters into an
agreement with Mr. Kaleem.
The following situations may emerge from this scenario:
Mr. Aslam terminated the agency relationship with Mr. Kaleem, however this was not in
the knowledge of Mr. Salman and he continued his commercial dealings with Mr.
Kaleem. Under the principle of estoppel, Mr. Aslam cannot claim that Mr. Kaleem is not
his agent, as far as these transactions are concerned.
Mr. Salman enters into an agreement with Mr. Kaleem. The transaction is in the
knowledge of Mr. Aslam. Mr. Aslam does not intimate Mr. Salman that Mr. Kaleem is
not his agent. Mr. Aslam under the principle of estoppel cannot claim that Mr. Kaleem is
not his agent.
Mr. Salman was entering into business dealings with Mr. Kaleem, treating Mr. Kaleem as
an authorized agent of Mr. Aslam. Mr. Kaleem entered into some agreements which were
beyond the authority vested in him by the Principal, Mr. Aslam. Mr. Salman is not aware
of this fact. Mr. Aslam (Principal) under the principle of estoppel cannot claim that he
cannot own the acts of his agent, Mr. Kaleem which are beyond his (agent) authority.
Agency by Ratification:
Concept of ratification is contained in Sec. 196
Sec. 196- Right of person as to acts done for him without his authority: where acts are
done by one person on behalf of another, but without his knowledge or authority, he may
elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if
they had been performed by his authority.
Illustration:
Mr. Fahad, an agent of Mr. Salman lends Rs 100,000 to Mr. Kaleem. Mr. Kaleem is
paying monthly profits to Mr. Fahad, who has rendered accounts in this respect to the
principal, Mr. Salman. By accepting the profits, Mr. Salman’s conduct implies a
ratification of the amount of loan provided by his agent, although without his authority.
Conditions of ratification: “On behalf of another
Ratification must be by the person for whom the agent professes to act. That an act done
for another by a person not assuming to act for himself, but for such other person, though
without any precedent authority whatever, becomes the act of the principal; if
subsequently ratified by him, is the known and well-established rule of law. In that case
the principal is bound by the act, whether it be for his detriment or his advantage, and
whether it be founded on a tort or a contract, to the same extent as by, and with all the
consequences which follow from, the same act done by his previous authority. But where
A does an act as agent for B without any communication with C, C cannot, by afterwards
adopting that act, make A his agent and thereby incur any liability, or take any benefit,
under the act of A. Ratification in the proper sense of the term, as used with reference to
the law of agency, is applicable only to acts done on behalf of the ratifier. And this rule is
recognised in S. 196 of the Contract Act. Ratification can be express or implied from
conduct.
A ratification of the unauthorised contract of an agent can only be effectual when the
contract has been made by the agent avowedly for, or on account of, the principal, and
not when it has been made on account of the agent himself A man cannot adopt by
ratification an act which was not authorised by him at the time and did not purport to be
done on behalf of any principal.
Since ratification is in law equivalent to a previous authority, a person not competent to
authorise an act cannot give it validity by ratifying it.
Ratification must be by an existing person on whose behalf the contract might have been
made at the time. Thus a newly-formed company cannot ratify an act done in its name
before it was incorporated. And where a time is limited for doing an act, and A does it on
behalf of B, but without his authority, within that time, B can ratify it only before the
time has expired.
The person on whose behalf an act purports to be done need not be individually known to
the agent; it is enough if he is ascertainable as owner of specified property or the like. A
man may affect an insurance on behalf of all persons interested, and any such person may
adopt the contract of insurance for his own share by ratification. A bailiff may receive the
rent of land on behalf of the unknown heirs of the last owner in possession, and those
heirs, when their title is ascertained, can ratify his acts.
“Acts done without knowledge or authority”—An act done by an agent in excess of his
authority may also be ratified. But there is a wide distinction between ratifying a
particular act which has been done in excess of authority and conferring a general power
to do similar acts in future. Therefore the ratification by a company of certain acts done
by its directors in excess of the authority given to them by the articles of the company
does not extend the authority of the directions so as to authorise them to do similar acts in
future.
Retrospective effect –Ratification, if effective al all, relates back to the date of the act
ratified. If an action is brought in a man’s name without his knowledge, he may adopt the
proceedings and make them good at any time. The rule goes so far that if A makes an
offer to B which Z accepts in B’s name without authority, and B afterwards ratifies the
acceptance, an attempted revocation of the offer by A in the time between Z’s acceptance
and B’s ratification is inoperative. So long as the professed agent purports to act on
behalf of the principal, it is immaterial whether in his own mind he intends the principal’s
benefit or not, and what his real motive and intention may be; nor does it make any
difference if the third party discovers before ratification that the agent meant to keep the
contract for himself. In fact, the third party gets by the ratification exactly what he
bargained for.
But if Z pays money to B as in satisfaction of A’s debt, and B, afterwards discovering
that Z had no authority, returns him the money by agreement between them. A can no
longer adopt the payment and rely on it as a discharge. A man is not bound to accept
payment of a debt, or satisfaction of any other obligation from a stranger to the contract,
though, if B had accepted the payment with knowledge of Z’s want of authority, or
acquieseed in it after he obtained that knowledge, he would have been estopped from
denying Z’s authority as against A.
If an offer is accepted by an agent subject to ratification no contractual relationship with
the principal comes into existence until ratification, and therefore up to that moment the
offer can be withdrawn. It has been held that where a partner without authority to do so
referred a dispute between a third party and the partnership to arbitration, and the other
partners did not ratify the submission to arbitration, the award cannot be enforced even
against the partner who so referred the dispute. It is submitted that the liability is joint
and several, and the partner submitting the matter to arbitration is bound by the award.
What acts cannot be ratified—A transaction which is void ab initio cannot be ratified.
This is illustrated by a line of cases in company law marking the distinction between
irregularities capable of being made goods if the act is ratified by a general meeting, or
the whole body of shareholders, and acts not within the company’s objects as defined by
its original constitution, and therefore incapable of being made binding on the company
by any ordinary means known to the law. A forged signature cannot be ratified; but a
person whose signature has been forged may be estopped from denying that a signature is
his, if for example, he has by his conduct induced the holder of a bill of cheque to alter
his (the holder’s) position.
Ratification would be effective though it is made subsequently—Ratification validates act
already performed—It relates back to time of inception of transaction and carries a
complete retrospective efficacy—Islamic Law as to ratification stated in judgment.
Principal—Ratification of acts by—Definite rule of ratification of acts of person by
another person on whose behalf the acts laid down in S. 196 of Contract Act—Held:
Principle of law enunciated in such section to equally apply to acts of attorney if ratified
by principal.
Only the civil liability created by act of an agent acting for his principal ratified and not a
criminal liability—Guarantee being a forged document—No ratification therefore
permissible this being a criminal liability.
Principle of ratification of contract—Scope of—Acts done by one person on behalf of
another without such person’s knowledge or authority—Principal might ratify or disown
acts done by agent on his behalf—Exception to such ratification was where right or
interest of third person was involved—Agent having entered into transaction of exchange
in favour of vendee, not having been specifically authorized to do so—Act of ratification
by principal had effect of terminating right of pre-emption vested in pre-emption—Even
if such exchange transaction was validated by principal, no benefit of exchange, held,
could be extended to vendee.
Agent.—Act of—Ratification of—Person authorised by principal to act as his attorney or
agent in respect of particular properly—Scope of such authority described in instrument
—Held: Any incidental action to property of such attorney or agent to be binding on
principal only when he accepts, acknowledges or undertakes by ratifying same—In
absence of ratification of action constituting transgression of authority, principal not to be
held responsible for such action of—Even unauthorised action of attorney in suit or
proceeding when ratified by principal (also) to be upheld.
Agent bidding at auction for his principal without duly executed power of attorney—
Principal ratifying act of agent—Auction is valid and effective. Where the agent who
made a bid at an auction for his principal did not have a duly executed power of attorney
as was required by the rules of auction and the transfer by such auction was therefore
challenged. Held: If the principal is named and accepts the action of his agent, even
though the same was not covered by a duly executed power of attorney at the time of the
auction, the matter would be fully covered by the doctrine of ratification, as embodied in
section 196 of the Contract Act, 1872.
Overdraft granted unauthorisedly by Manager of Bank—Bank charging interest on
amount and suing on hypothecation—Act of agent stands ratified by conduct.
Servants, unauthorised acts of—May be ratified by Master.—These sections are not
limited to acts of agents but they lay down general principles which are equally
applicable to a servant who is generally his master’s agent for some purpose, the extent of
the agency depending on the duties and position of the servant.
Unauthorised act of agent when implied ratification by conduct is presumed—No
ratification by conduct where acts are disapproved: To constitute implied ratification by
conduct of acts previously unauthorised, the conduct of the principal must be such as to
lead to the necessary inference that there was an unqualified and binding adoption of
those acts by him. Where the Board categorically declined to approve of the alleged
contract despite recommendations by the Managing Director, there can be no implied
ratification by conduct of those acts.
Effect of Ratification: Sec. 199
Effect of ratifying unauthorized act forming part of a transaction is discussed
below:
A person ratifying any unauthorized act done on his behalf ratifies the whole of the
transaction of which such act formed a part.
It is obvious that a man cannot at his own choice ratify part of a transaction and
repudiates the rest. The only possible exception is in the case of the part repudiated being
wholly for the principal’s benefit, which is not likely to occur. The general rule is that,
where ratification is established as to a part, it operates as a confirmation of the whole of
that particular transaction of the agent.
Rights and Obligations of different parties as a result of Ratification:
We can conclude that parties to a contract of agency have the following rights and
obligations:
1. Principal may sue the third party and third party can also sue the principal.
2. No liability shall be incurred by the agent to third party
3. Agent not liable for exceeding his authority
4. Principal is required under law to pay reasonable remuneration to the agent.
CONTRACT OF AGENCY
Contract of Agency
We have already discussed some aspects of agency; other areas relating to a contract of
agency are discussed in the following paragraphs.
Types of Agent:
The agents may be classified as under:
1. Public Agents: these are representatives of a State
2. Private Agents: these agents represent individuals or companies
3. General Agents: these agents pertaining to a business, vocation or profession
4. Special Agents: such agents are appointed for a specific transaction.
5. Co-Agents: such Agents act along with Principal.
Duties of the Agent:
Duties of agent are contained in sections from 211 to 218 of the Contract Act. Some of
the important duties are enumerated below:
Provided that if, in the opinion of the Conciliator or the Board, the presence of the
employer or any office bearer of the trade union connected with the dispute is necessary
in a meeting called by him, he or, as the case may be, it shall give notice in writing
requiring the employer or such office bearer to appear in person before him or it at the
place, date and time, specified in the notice and it shall be the duty of the employer or the
office bearer of trade union to comply with the notice.
Partnership Act, 1932 The Conciliator or the Board shall perform such functions in
relation to a dispute before him or it as may be prescribed may, in particular, suggest to
either party to the dispute such concessions or modifications in its demand as are in the
opinion of the Conciliator or the Board likely to promote an amicable settlement of the
dispute.
Arbitration:
Partnership has been defined in section 4 of the Act which is reproduced below: If
the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the
dispute to an arbitrator, and in case the parties agree, they shall make a joint request in
writing for reference of the dispute to an arbitrator agreed upon by them.
“Partnership” is the relation between persons who have agreed to share the profits of a
business carried on by all or any of them acting for all. Persons who have entered into
partnership with one another called individually “partners” and collectively “a firm” and
the name under which their business is carried on is called the “firm name”. The
arbitrator shall give his award within a period of thirty days from the date on which the
dispute is referred to him under sub-section
(1) or such further period as may be agreed upon by the parties to the dispute.
Explanation: After the arbitrator has made the award, he shall forward a copy thereof to
the parties and to a Provincial Government or the Federal Government, as the case may
be, who shall cause it to be published in the official Gazette.
Halsbury defines a partnership as “the relation which subsists between persons carrying
on a business in common with a view of profit”.
According to case law reported as (PLD-1985 Karachi-85 (90)) partnership has been
interpreted as under: Partnership is the relation between individuals who have entered
into agreement for the purpose of sharing profits of a business. If no settlement is arrived
at during the course of conciliation proceedings and the parties to the dispute do not agree
to refer it to an arbitrator under section 30, the workmen, subject to a seven days notice to
the employer, may go on strike or, as the case may be, the employer may declare a lock-
out on the expiry of the period of the notice under section 27 or upon a declaration by the
Conciliator or the Board that conciliation proceedings have failed, whichever is the later.
(ii) There must be an agreement entered into by all the persons concerned. In any case in
which the Federal Government or a Provincial Government prohibits a strike or lock-out
it shall forthwith refer the dispute to the Commission or, as the case may be, the Labour
Court.
(iv) The business must be carried on by all or any of the persons concerned acting for all.
The Commission, or as the case may be, the Labour Court shall, after giving both the
parties to the dispute an opportunity of being heard, make such award as it deems fit as
expeditiously as possible but not exceeding thirty days from the date on which the dispute
was referred to it;
All the above elements must be present before a group of persons can be held to be
Partners. Each of these elements are discussed below in their necessary details. Provided
that the Commission, or as the case may be, the Labour Court may make an interim
award on any matter of dispute; Provided further that any by the Commission or, as the
case may be, the Labour Court in making an award shall not affect the validity or any
award by it.
(i) There must be an association of two or more persons to carry on a business. A group
of persons with no legal relations inter se, i.e. no mutual rights and liabilities between
themselves would not be a partnership.
(ii) There must be an agreement entered into by all the persons concerned. This
requirement emphasizes the fact that partnership can only arise as a result of an
agreement, express or implied, between two or more persons there must be an agreement
entered into by all the partners. Partnership is thus created by a contract; it does not arise
by the operation of law. Joint ownership may arise by the operation of law, but not
partnership. Thus on the death of a person, his children may inherit the family properly
jointly together with the family business and may share the profits of the business
equally; but they are not, for that reasons, partners.
Only lawful Agreement: The contract which is the foundation of partnership, must itself
be founded on good faith, and must be for a lawful object and purpose and between
competent persons. In short it is subject to the ordinary incidents and attributes of
contracts. An award of the Commission or, as the case may be, the Labour Court shall be
for such period, as may be specified in the award, but shall not be for more than two
years.
(iii) The Agreement must be to share the profits of a business.-The object of the
agreement or contract is to carry on a business. And the business which the partners carry
on must, of course, be legal. Where there is no partnership. The mere fact that several
persons own something in common which produces returns and that such person divide
those returns according to their respective interests, does not make them partners. For
instance A and B are co-owners of a house let to a tenant and A and B divide the net rent
between themselves. A and B are not partners, because receiving rent of a house let to a
tenant is not a business.
(a) Term “Business”. defined.- The term business has been defined (in Section. 2) to
include every trade, occupation and profession. Business may be temporary or permanent
(i.e. indefinite). But it must be in existence. An agreement to carry on business at a future
time does no result in present partnership.
(c) Profits of business.- The term profits refers to net profits that is to say the excess of
returns over advances, or in other words, the excess of what is obtained over the cost of
obtaining it. The English Partnership Act expressly provides that sharing gross returns
will not constitute a partnership. Thus, in one English case, the owner of a theatre
allowed a travelling manager and his company to use the building, scenery, appliances,
etc., in consideration of receiving half the money obtained from the spectators. In a case
law, the Court observed that this did not make the owner answerable as a partner of the
travelling manager. (Lyon V Knowles, 1863, 3 B & S. 556)
(iv) Carrying of business.- The last element is that business must be carried on by all or
by any of the persons concerned acting for all. This shows that the persons or the group
who conduct the business do so as agents for all the persons in the group, and are,
therefore, liable to account to all. In fact, the relation of principal and agent amongst the
partners i.e. mutual agency, is the true test of partnership. A partner is both a principal
and an agent. While the relation between partners inter se is that of principals, but in
relation to third parties for the business of the firm, they are agents of the firm and also of
one another. Thus each partner is regarded as an agent of the other partners, and as such,
a partner acting in the course of the business of the firm, can bind his co-partners. But in
order to bind his co-partners, it is necessary for the partner acting on behalf of the firm to
contract in the firm name or in any other manner expressing or implying an intention to
bind his co-partners. A partner contracting in his own name can create only a personal
liability and not the collective liability of the firm. The mere fact that money borrowed by
partner in his own name on security belonging to him personally, has been used for the
purpose of the firm with the knowledge of his partners, does not render them liable.
Illustrations:
The general duties of the partners are contained in section 9 of the Act which is given
below:
Partners are bound to carry on the business of the firm to the greatest common advantage,
to be just and faithful to each other, and to render true accounts and full information of all
things affecting the firm to any partner or his legal representative.
Explanation:
Sec. 9 imposes the following two paramount duties and liabilities on a partner.-
3. Duty of good faith and common advantage provides that partners are bound-
(a) to carry on the business of the firm to the greatest common advantage; and
(b) to be just and faithful to each other. This duty is very widely and generally worded. In
practice, it means that all the endeavours of partner must be directed towards securing
maximum profit for the firm.
(1) A and B buy 100 bales of cotton, which they agree to sell on their joint account. A
and B are partners in respect of such cotton.
(2) A and B buy 100 bales of cotton, agreeing to share the cotton between them. A and B
are not partners.
(3) A and B agree to work together as carpenters. A is to receive all the profits and pay a
salary to B,-A & B are not partners.
(4) A and B enter into a “partnership agreement whereby A is to have no share in either
the profits or the loss of the business – A and B are not partners.
(5) A and B are joint owners of a ship. This, by itself does not make them partners.
Kinds of Partnership
a) Partnership-at-will (sec. 7)
Partnership at will:
It has been defined in section 7 of the Act which is reproduced below: Where no
provision is made by contract between the partners for the duration of their partnership,
or for the determination of their partnership, the partnership is “partnership at will”.
Explanation:
Particular partnership
A particular partnership has been defined in section 8 of the Act which is reproduced
below:
Explanation:
a) a partner is not entitled to receive remuneration for taking part in the conduct of the
business;
b) the partners are entitled to share equally in the profits earned, and shall contribute
equally to the losses sustained by the firm;
c) where a partner is entitled to interest on the capital subscribed by him such interest
shall be payable only out of profits;
d) a partner making, for the purposes of the business, any payment or advance beyond the
amount of capital he has agreed to subscribe, is entitled to interest thereon at the rate of
six per cent per annum;
e) the firm shall indemnify a partner in respect of payments made and liabilities incurred
by him-
g) in doing such act, in an emergency, for the purpose of protecting the firm from loss, as
would be done by a person of ordinary prudence, in his own case, under similar
circumstances; and
h) a partner shall indemnify the firm for any loss caused to it by his willful neglect in the
conduct of the business of the firm.
a) where a change occurs in the constitution of a firm, the mutual rights and duties of the
partners in the reconstituted firm remain the same as they were immediately before the
change as far as may be;
b) where a firm constituted for a fixed term continues to carry on business after the expiry
of that term, the mutual rights and duties of the partners remain the same as they were
before the expiry, so far as they may be consistent with the incidents of partnership-at-
will; and
c) where a firm constituted to carry out one or more adventures or undertakings carries
out other adventures or undertakings, the mutual rights and duties of the partners in
respect of the other adventures or undertakings are the same as those in respect of the
original adventures or undertakings.
Subject to the provisions of this Act a partner is the agent of the firm for the purposes of
the business of the firm.
A Partner Principal as well as an Agent:- This is one of the most important tests of
partnership as agency is the essence of the relationship of partnership. Therefore, a
partner is both a principal and an agent. While the relation between partners with regard
to principals, they are agents of the firm and of one another in relation to third parties for
the purposes of the business of the firm. Thus, each partner is regarded as an agent of the
other partners, and as such, a partner, acting in the course of the business of the firm, can
bind his co-partners. But, in order to bind his co-partners, it is necessary for the partner
acting on behalf of the firm to contract in the firms name or in any other manner
expressing or implying an intention to bind his co-partners. A partner contracting in his
own name incurs only a personal liability, and not the collective liability of the firm. The
mere fact that money borrowed by a partner in his own name on security belonging to
him personally has been used for the purpose of the firm with the knowledge of partners,
does not render them liable.
The provisions on this subject are contained in section 19 of the Act which is reproduced
below:
(1) Subject to the provisions of section 22, the act of a partner which is done to carry on,
in the usual way, business of the kind carried on by the firm, binds the firm. The authority
of a partner to bind the firm conferred by this section is called his “implied authority”.
(2) In the absence of any usage or custom of trade to the contrary, the implied authority
of a partner does not empower him to:-
(b) Open a banking account on behalf of the firm in his own name,
In order to bind the firm an act of a partner done within the scope of his implied
authority, these conditions must exist-
1. The act must be done in the conduct of the business of the kind carried on by the firm.
2. The act must be done in the way which is usual in such business.
3. Finally, the act must be done in the firm name or in any other manner expressing or
implying an intention to bind the firm.
LAW OF PARTNERSHIP
We have already discussed the concept of partnership; some more concepts are discussed
in the following paragraphs:
Relations of partners to third parties
Liability of a partner for acts of the firm:
It is contained in section 25 of the Act which is reproduced below:
Every partner is liable, jointly with all the other partners and also severally, for all acts of
the firm done while he is a partner.
Sec. 25 of the Act lays down that all the partners of a firm, jointly and severally, share
liabilities of the firm therefore, even where a partner has signed in his own name a
promissory note for the benefit of the firm, all partners are liable on it as members of the
partnership.
Holding out:
This concept is dealt with in section 28 of the Act which is given below:
(1) Any one who by words spoken or written or by conduct represents himself, or
knowingly permits himself to be represented, to be a partner in a firm, is liable as a
partner in that firm to any one who has on the faith of any such representation given
credit to the firm, whether the person representing himself or represented to be a partner
does or does not know that the representation has reached the person so giving credit.
(2) Where after a partner’s death the business is continued in the old firm name, the
continued use of that name or of the deceased partner’s name as a part thereof shall not of
itself make his legal representative or his estate liable for any act of the firm done after
his death.
Liability by Holding out: Section 28 of the Act deals with what is known as liability by
“holding out”. Where a person represents himself or knowingly permits himself to be
represented as a partner in a firm, he will be liable as a partner in that firm, to any one
who, on the faith of any such representation, has given credit to the firm. The person so
representing himself, or permitting himself to be so re-presented is known as a partner by
holding out or a partner by estoppel. Even want of knowledge on his part of the effects of
his acts and conduct would not absolve him from liability.
In other words where a man holds himself out as a partner, or a allows others to do it, he
is then estopped from denying the character he has assumed upon the faith of which
creditors may be presumed to have acted. A man so acting may be rightly held liable as a
partner by estoppel. In other words, the doctrine of “holding out” is a part of the principle
of estoppel, which lays down that where one person, by words or conduct induces another
to believe him and act upon the existence of a particular state or facts, he can not
afterwards, as regards that person, deny the existence of such facts.
Thus A is in the habit of representing himself to be a partner of a particular firm. B on the
strength of such representation, and without giving any notice to A supplies goods on
credit to the firm. A would be liable as a partner to B for the price of the goods.
Essentials of Section 28.- In order to estop a person from denying that he is a partner on
the doctrine of “Holding out”, the following two important elements must co-exist.
1. A person must represent himself to be a partner in a firm, or knowingly permit himself
to be represented and 2. Another person must have given credit to the firm on the faith of
such representation.
The following seven additional points may also be noted in connection with the doctrine
of holding outs.
(i) The representation may be express or implied it need not necessarily be by words
spoken or written, it need not be made by the person himself, but may be made by others.
(ii) There will be no representation by conduct if the acts relied upon are ambiguous.
(iii) A general representation to the, world at large is not sufficient, unless the person who
gives credit can satisfy the court that he was aware of, and acted upon it to his prejudice.
(iv) To establish liability, it is not essential to show that the party making the
representation (or permitting it to be made) has acted fraudulently or negligently. Even
want of knowledge on his part, of the effects of his acts and conduct, would not absolve
him from liability, if his acts and conduct were such as would induce a reasonable man to
believe that he was a partner, and to act upon such belief. The main thing is whether the
representation has caused the person to whom it was made to act on the faith of it so as to
alter his position.
(v) A former owner does not become a partner by estoppel merely because the firm has
continued to use its old name of which his own name forms a component part. The rule of
estoppel is binding on a former partner who has retired without giving proper notice of
his retirement.
(vi) There is no liability in tort on the ground of holding out, because the injured person
can not claim that he was led to suffer the injury by his belief in any representation. Thus,
B allowed his name to appear on a traction engine. A hired the engine, and through his
negligence, injured C sued B on the ground of “holding out”. It was hold that B was not
liable.
(vii) There can be no holding out to a person who is aware of the actual facts e.g. a
person who has inspected the register of a firm which has been registered under the Act.
Effects of holding out:- If a person holds himself out to be a partner of a firm, he
becomes personally liable, he does not thereby become a partner in the firm and he is also
not entitled to any rights as against those who are in fact partners in the firm. By holding
out to be a partner, he does not become an agent of the firm. He merely makes himself
personally liable for the credit given to the firm on the faith of his representation.
Introduction of a partner:
It is contained in section 31 of the Act which is reproduced below:
(1) Subject to contract between the partners and to the provisions of section 30 no person
shall be introduced as a partner into a firm without the consent of all the existing partners.
(2) Subject to the provisions of section 30 a person who is introduced as a partner into a
firm does not thereby become liable for any act of the firm done before he became a
partner. Section 30 is about the contracts of wagering, which are void.
Explanation:
Section.31 provides that no person can be introduced as a partner into a firm without the
consent of
all the existing partners. Where one of the partners of a firm transfers his share in the firm
without the consent of the other partners the transferee does not get the status of a partner
in view of S. 31, Partnership Act. He has only limited rights and can claim only a share of
the profits to which the transferor partner was entitled.
It may be noted that there is nothing to prevent an incoming partner agreeing with his co-
partners to make himself liable for the debts incurred by the firm prior to his admission
therein. But, even where he has so agreed the agreement does not confer any right on
creditors of the old firm to impose the old debts on the new partner. They can acquire
such a right only by entering into an agreement between themselves and the new partner,
either expressly or by implication.
The only way in which a new partner can be made liable to the creditors of the firm
in respect; of past debts is by proving:-
(1) That the re-constituted firm has assumed the liability to pay the debt, and
(2) That the creditor concerned has agreed to accept the re-constituted firm as his debtors,
and discharge the old firm from its liability.
Revocation of continuing guarantee by change in firm:
It is provided in section 38 of the Act which is reproduced here under:
A continuing guarantee given to a firm, or to a third party in respect of the transaction of
a firm, is in the absence of agreement to the contrary, revoked as to future transactions
from the date of any change in the constitution of the firm.
Dissolution of a Firm:
It is contained in section 39 of the Act which is given below:
The dissolution of partnership between all the partners of a firm is called the “dissolution
of the firm”.
Explanation:
This Chapter contains Sections – 39 to 55, which lay down the rules regulating the
dissolution of a firm. S.39 lays down that the dissolution of partnership between all the
partners of a firm is called the ‘dissolution of the firm’.
The various way of dissolution of Firm- The dissolution of a firm may take place in one
of the following five ways.
1. As a result of an agreement between all the partners: (Section 40).
2. Compulsory dissolution, i.e.,
(a) By the adjudication of all the partners, or of all the partners but one, as insolvent:
Section.41 (a).
(b) By the business of the firm becoming unlawful: Section 41(b).
3. Subject to agreement between the partners, on the happening of certain contingencies,
such as-
(i) efflux of time;
(ii) completion of the adventure for which it was entered into;
(iii) death of a partner; and
(iv) insolvency of a partner: Section.42
4. By a partner giving notice of his intention to dissolve the firm, in case of a
partnership at will: Section.43.
5. By intervention of the Court in case of
(i) a partner becoming of unsound mind;
(ii) permanent incapacity of a partner;
(iii) misconduct of a partner affecting the business of the firm;
(iv) willful or persistent breaches of agreement by a partner;
(v) transfer or sale of the whole interest of a partner;
(vi) improbability of the business being carded on save at a loss;
(vii) the Court being satisfied on any other equitable ground that the firm should be
dissolved: Section 44.
The ways of dissolution as enumerated above are discussed below:
Dissolution by agreement: Sec. 40
A firm may be dissolved with the consent of all the partners or in accordance with a
contract between the partners.
A firm may be dissolved.
(a) with the consent of all the partners or
(b) in accordance with a contract between the parties.
Compulsory dissolution: sec. 41
A firm is dissolved -
a) by the adjudication of all the partners or of all the partners but one as insolvent or
b) by the happening of any event which makes it unlawful for the business of the firm to
be carried on or for the partners to carry it on in partnership:
Provided that, where more than one separate adventure or undertaking is carried on by
the firm, the illegality of one or more shall not of itself cause the dissolution of the firm
in respect of its lawful adventures and undertakings.
Dissolution on the happening of certain contingencies: Sec. 42
Subject to contract between the partners a firm is dissolved-
(a) if constituted for a fixed term, by the expiry of that term;
(b) if constituted to carry out one or more adventures or undertakings, by the completion
thereof;
(c) by the death of a partner; and
(d) by the adjudication of a partner as an insolvent.
Dissolution by notice of partnership-at-will— Sec. 43:
(1) Where the partnership is at will, the firm may be dissolved by any partner giving
notice in writing to all the other partners of his intention to dissolve the firm.
(2) The firm is dissolved as from the date mentioned in the notice as the date of
dissolution or, if no date is so mentioned, as from the date of the communication of the
notice.
Dissolution of a firm by the Court: Sec. 44
At the suit of a partner, the Court may dissolve a firm on any of the following
grounds, namely:-
a) that a partner has become of unsound mind, in which case the suit may be brought as
well by the next friend of the partner who has become of unsound mind as by any other
partner;
b) that a partner, other than the partner suing, has become in any way permanently
incapable of performing his duties as partner;
c) that a partner, other than the partner suing, is guilty of conduct which is likely to affect
prejudicially the carrying on of the business, regard being had to the nature of the
business;
d) that a partner, other than the partner suing, willfully, or persistently, commits breach of
agreements relating to the management of the affairs of the firm or the conduct of its
business, or otherwise so conducts himself in matters relating to the business that it is not
reasonably practicable for the other partners to carry on the business in partnership with
him;
e) that a partner, other than the partner suing, has in any way transferred the whole of his
interest in the firm to a third party, or has allowed his share to be charged under the
provisions of rule 49 of Order XXI of the First Schedule to the Code of Civil Procedure,
1908, or has allowed it to be sold in the recovery of arrears of land-revenue or of any
dues recoverable as arrears of land-revenue due by the partner;
f) that the business of the firm cannot be carried on save at a loss; or
g) on any other ground which renders it just and equitable that the firm should be
dissolved.
Registrations of firms:
Application for Registration—sec. 58
(1) The registration of a firm may be effected at any time by sending by post or
delivering to the Registrar of area in which any place of business of the firm is
situated or proposed to be situated, a statement in the prescribed form and
accompanied by the prescribed fee, stating –
a) the firm name,
b) the place or principal place of business of the firm,
c) the names of any other places where the firm carries on business,
d) the date when each partner joined the firm,
e) the names in full and permanent addresses of the partners, and,
f) duration of the firm.
The statement shall be signed by all the partners, or by their agents specially authorized
in this behalf.
The application for registration must be made to a Registrar appointed under Section-57.
The registration of a firm may be effected at any time by sending by post or
delivering to the Registrar of the area in which any place of business of the firm is
situated or proposed to be situated, a statement in the prescribed form and
accompanied by the prescribed fee, stating:-
(a) the firm name.
(b) the place or principal place of business of the firm.
(c) the names of any other places where the firm
(d) the names in full and permanent addresses of the partners, and
(e) the duration of the firm.
Such a statement is to be signed by all the partners or by their agents specially authorised
in this behalf. Each person signing the statement must also verify it in the prescribed
manner. When the Registrar is satisfied that the provisions of section-58 have been duly
complied with, he will entertain the statement for its Registration.
Registration –sec. 59
When the Registrar is satisfied that the provisions of section 58 have been duly complied
with, he shall record an entry of the statement in a register called Register of Firms and
shall file the statement.
Effect of non-registration—sec. 69
The provisions are contained in section 69 of the Act which is given below:
1) No suit to enforce a right arising from a contract or conferred by this Act shall be
instituted in any court by or on behalf of any person suing as a partner in a firm against
the firm or any person alleged to be or to have been a partner in the firm unless the firm is
registered and the person suing is or has been shown in the Register of Firms as a partner
in the firm.
2) No suit to enforce a right arising from a contract shall be instituted in any court by or
on behalf of a firm against any third party unless the firm is registered and the persons
suing are or have been shown in the Register of Firms as partners in the firm.
3) The provisions of subsections (1) and (2) shall apply also to a claim of set-off or other
proceeding to enforce a right arising from a contract, but shall not affect –
a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a
dissolved firm, or any right or power to realize the property of a dissolved form,
b) the powers of an official assignee, receiver or court under the [Insolvency] […Federal
Territory of Karachi Act 1909] or the Provincial Insolvency Act 1920 to realize the
property of an insolvent partner.
4) This section shall not apply -
a) to firms or to partners in firms which have no place of business in [Pakistan] or whose
places for business in [Pakistan] are situated in areas to which by notification under
[section 56] this Chapter does not apply or
b) to any suit or claim of set-off not exceeding one hundred rupees in value which, is not
of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act,
1887 or to any proceeding in execution or other proceeding incidental to or arising from
any such suit or claim.
Penalty for furnishing false particulars—sec. 70
Any person who signs any statement, amending statement, notice or intimation under this
Chapter containing any particular which he knows to be false or does not believe to be
true, or containing particulars which he knows to be incomplete or does not believe to be
complete, shall be punishable with imprisonment which may extend to three months, or
with fine, or with both.
Advantages of Incorporation:
(1) In this Ordinance, unless there is anything repugnant in the subject or context –
a) “articles” means the articles of association of a company as originally flamed or as
altered in accordance with the provisions of any previous Companies Act, or of this
Ordinance, including so
far as they apply to the comp-any, the regulations contained in Table A in the First
schedule;
b) “associated companies” and “associated undertakings” mean any two or more
companies or
undertakings, or a company and an undertaking interconnected with each other in the
following manner, namely:
c) if a person who is the owner or a partner or director of a company or undertaking or
who, directly or indirectly holds or controls shares carrying not less than HTUtenUTH
per cent of the voting power in such company or under-taking, is also the owner or
partner or director of another company or under-
taking or directly or indirectly, holds or controls shares carrying not less than Twenty per
cent. of
the voting power in that company or undertaking; or
(a) every member of the company except those members who, having no registered
address within Pakistan, have not supplied to the company an address within Pakistan for
the giving of notices to them, and also to (b) every person entitled to a share in
consequence of the death or insolvency of a member, who but for his death or insolvency
would be entitled to receive notice of the meeting, and
(c) to the auditors of the company for the time being. Winding up 84. (1) If the company
is wound up, the liquidator may, with the sanction of a special resolution of the company
and any other sanction required by the Ordinance divide amongst the members, in specie
or kind, the whole or any part of the assets of the company, whether they consist of
property of the same kind or not.
(2) For the purpose aforesaid, the liquidator may set such value as he deems fair upon any
property, to be divided as aforesaid and may determine how such division shall be carried
out as between the members or different classes of members.
(3) The liquidator may, with like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the contributories as the liquidator, with the
like sanction, thinks fit, but so that no member shall be compelled to accept any shares or
other securities whereon there is any liability.
Indemnity
85. Every officer of agent for the time being of the company may be indemnified out of
the assets of the company against any liability incurred by him in defending any
proceedings, whether civil or criminal, arising out of his dealings in relation to the affairs
of the company, except those brought by the company against him, in which judgment is
given in his favour or in which he is acquitted, or in connection with any
application under section 488 in which relief is granted to him by the Court.
Effects thereof: –Sec 32
After registration the company becomes a separate legal entity, having perpetual
succession and a
common seal.
Effects of registration are given here under:
Certificate of Incorporation:
This shall be explained in our later discussion.
1. Certificate of Incorporation
2. Commencement of business
3. Memorandum of Association
4. Articles of Association
5. Prospectus
Certificate of Incorporation:
On issuance of this certificate, the promoters of proposed company become entitled on
the registration of its memorandum with the registrar of companies. This certificate
contains the following information:
• Date of issue
• Name of the company
• Certification by the registrar that company is incorporated
• In case of limited company certificate by the registrar that company is limited.
• Province and seal of the registrar
• On registration of a company
• On the change of the name of a company—amended certificate to be issued
• On the request of a person on payment of prescribed fee as laid down in section
466 (6)
Any person may inspect the documents kept by the registrar and any person may require
a certificate of incorporation or a certificate of commencement of business of any
company, or a copy or extract of any
other document or register or any part of any other document or register to be certified by
the registrar on
payment of the fees specified in the Sixth Schedule.
Commencement of business:
Commencement of business by a private company: sec 146 (6)
A private company can start its business on issuance of certificate of incorporation,
meaning thereby that private company can enter into binding contracts and also exercise
borrowing powers.
Commencement of business by a public company: sec 146 (1)
A public company cannot start business on issuance of certificate of incorporation
whereas it can only start
business on issuance of certificate of commencement of business under the provisions of
sec 146 (1) which is reproduced below:
Commencement of business by a public company: sec 146 (1)
(1) A company shall not commence any business or exercise any borrowing powers
unless-
(a) shares held subject to the payment of the whole amount thereof in cash have been
allotted to an amount not less in the whole than the minimum subscription;
(b) every director of the company has paid to the company full amount on each of the
shares taken or contracted to be taken by him and for which he is liable to pay in cash; (c)
no money is or may become liable to be repaid to applicants for any shares or debentures
which have been offered for public subscription by reason of any failure to apply for or to
obtain permission for the shares or debentures to be dealt in on any stock exchange;
(d) there has been filed with the registrar a duly verified declaration by the chief
executive or one of the directors and the secretary in the prescribed form that the
aforesaid conditions have been complied with and the registrar has issued a certificate
referred to in sub-section (2); and
(e) in the case of a company which has not issued a prospectus inviting the public to
subscribe for its shares, there has been filed with the registrar a Statement in lieu of
prospectus.
Certificate of commencement of business:
• it is a conclusive evidence that public company can start the business and enter into
contracts with the rest of world.
• Any contract made before issuance of this certificate shall be provisional and the
contracts enter into are not binding.
Restrictions on commencement of business:
(1) A company shall not commence any business or exercise any borrowing powers
unless—
(a) shares held subject to the payment of the .,whole amount thereof in cash have been
allotted to an amount not less in the whole than the minimum subscription;
(b) every director of the company has paid to the company full amount on each of the
shares taken or
contracted to be taken by him and for which he is liable to pay in cash;
(c) no money is or may become liable to be repaid to applicants for any shares or
debentures which have been offered for public subscription by reason of any failure to
apply for or to obtain permission for the shares or debentures to be dealt in on any stock
exchange;
(d) there has been filed with the registrar duly verified declaration by the chief executive
or one of the directors and the secretary in the prescribed form that the aforesaid
conditions have been complied with and the registrar has issued a certificate referred to in
subsection (2); and
(e) in the case of a company which has not issued a prospectus inviting the public to
subscribe for its shares, there has been filed with the registrar a statement in lieu of
prospectus.
(2) The registrar shall, on the filing of a duly verified declaration in accordance with the
provisions of
subsection (1) and after making such enquiries as he may deem fit to satisfy himself that
all the
requirements of this Ordinance have been complied with in respect of the commencement
of business and matters precedent and incidental thereto, certify that the company is
entitled to commence
business, and that certificate shall be conclusive evidence that the company is so entitled:
Provided that, in the case of a company which has not issued a prospectus inviting the
public to subscribe for its shares, the registrar shall not give such a certificate unless a
statement in lieu of prospectus has been filed with him.
(3) Any contract made by a company before the date at which it is entitled to commence
business shall be provisional only, and shall not be binding on the company until that
date, and on that date it shall become binding.
(4) Nothing in this section shall prevent the simultaneous offer for subscription or
allotment of any shares and debentures or the receipt of any money payable on
application for debentures.
(5) If any company commences business or exercises borrowing powers in contravention
of this section,
every, officer and other person who is responsible for the contravention shall, without
prejudice to any other liability, be liable to a fine not exceeding one thousand rupees for
every day during which the
contravention continues.
(6) Nothing in this section shall apply to a private company, or to a company limited by
guarantee and not having a share capital.
Memorandum of Association: Memorandum of association is a legal document for
incorporation of a company
Memorandum of association is a fundamental legal document on the basis of which the
company conducts its external affairs. This document signifies the powers of the
company as well as the limitations of the company. It contains information regarding the
purpose, capital, place of business, liability of the members and acquisition of shares by
the subscribers.
Contents of Memorandum—section 16,17,18
Memorandum of association is required to be subscribed by at least three persons in
case of public company and at least by one person in case of private company.
• Name Province in which the registered office of the company is to be located
• Objects
• Liability of the members—limited or unlimited
• Authorized capital
(i) the memorandum shall also state the amount of share capital with which the company
proposes to be registered and the division thereof into shares of a fixed amount:
(ii) no subscriber of the memorandum shall take less than one share: and
(iii) each subscriber shall write opposite to his name the number of shares he takes.
Memorandum of unlimited company: sec 18
In the case of an unlimited company—
(a) whether or not the company has a share capital, the memorandum shall stale
(i) the name of the company;
(ii) the Province or the part of Pakistan not forming part of a Province, as the case may
be, in which the
registered office of the company is to be situate; and
(iii) the objects of the company, and, except in the case of a trading corporation, the
territories to which
they extend; and
(b) if the company has a share capital,-
(i) no subscriber of the memorandum shall take less than one share; and
(ii) each subscriber shall write opposite to his name the number of shares he takes
Requirements of memorandum:
Following requirements must be fulfilled before submission of the memorandum of
association to the
Registrar.
• Required to be printed
• Should be divided into paragraphs
• Paragraphs to be consecutively numbered
• To be signed by the subscribers
• Signatures duly witnessed by at least one witness
• Signature of each subscriber to be attested by the witness
• Complete address/ occupation of the subscriber to be mentioned.
• Address, occupation of the witness to be mentioned
Articles of Associations
Article of association is another important legal document which is subordinate to
memorandum of association. It is concerned with the internal conduct and control of the
company. Articles of association as provided in section 2 (1) (i) :
–”articles” means the articles of association of a company as originally framed or as
altered in accordance with the provisions of any previous Companies Act, or of this
Ordinance, including, so far as they apply to the company, the regulations contained in
Table A in the First Schedule;
Contents of Articles of association are comprised of provisions, rules of Articles of
Association:
Regulations concerning the internal management of the company which are
outlined here under:
Section 26 of the Ordinance as contained in the Ordinance is reproduced here under for
reference:
Registration of articles: sec 26
(1) There may, in the case of a company limited by shares, and there shall, in the case of
a company
limited by guarantee or an unlimited company, be registered with the memorandum,
articles of association signed by the subscribers to the memorandum and setting out
regulations for the company.
(2) Articles of association may adopt all or any of the regulations contained in Table A in
the First
Schedule.
(3) In the case of an unlimited company or a company limited by guarantee, the articles,
if the
company has a share capital, shall state the amount of share capital with which the
company proposes to be registered.
(4) In case of an unlimited company or a company limited by guarantee, if the company
has not a share capital, the articles shall state the number of members with which the
company proposes to be registered.
(5) In the case of a company limited by shares and registered after the commencement of
this Ordinance, if articles are not registered, or, if articles are registered, in so far as the
articles do not exclude or modify the regulations in Table A in the First Schedule, those
regulations shall, so far as applicable, be the regulations of the company in the same
manner and to the same extent as if they were contained in duly registered articles.
(6) The articles of every company shall be explicit and without ambiguity and, without
prejudice to the generality of foregoing, shall list and enumerate the voting and other
rights attached to the different classes of shares and other securities, if any, issued or to
be issued by it.
Alteration of articles: sec 28
Subject to the provisions of this Ordinance and to the conditions contained in its
memorandum, a company
may by special resolution alter or add to its articles, and any alteration or addition so
made shall be as valid as if originally contained in the articles, and be subject in like
manner to alteration by special resolution: Provided that, where such alteration affects the
substantive rights or liabilities of members or of a class of
members, it shall be carried out only if a majority of at least three-fourth of the members
or of the class of members affected by such alteration, as the case may be, personally or
through proxy vote for such alteration.
Form of memorandum and articles: sec 29
The form of memorandum of articles shall be in accordance with the forms set out in
tables, B,C,D and E of the first schedule
(a) the memorandum of association of a company limited by shares;
(b) the memorandum and articles of association of a company limited by guarantee and
not having a share capital;
(c) the memorandum and articles of association of a company limited by guarantee and
having a share capital;
(d) the memorandum and articles of association of an unlimited company having a share
capital;
Registration of memorandum and articles, etc: sec 30
(1) The memorandum and the articles, if any, shall be filed with the registrar in the
Province or the part of Pakistan not forming part of a Province, as the case may be, in
which the registered office of the company is stated by the memorandum to be situate.
(2) A declaration by such person as may be prescribed in this behalf, or by a person
named in the articles as a director, or other officer of company, of compliance with all or
any of the requirements of this Ordinance and the rules made thereunder shall be filed
with the registrar; and the registrar may accept such a declaration as sufficient evidence
of such compliance.
(3) If the registrar is satisfied that the company is being formed for lawful purposes, that
none of its objects stated in the memorandum is inappropriate or deceptive or
insufficiently expressive and that all the requirements of this Ordinance and the rules
made thereunder have been complied with in respect of registration and matters precedent
and incidental thereto, he shall retain and register the memorandum and articles. if any.
(4) If registration of the memorandum is refused, the subscribers of the memorandum or
any one of them authorised by them in writing may either supply the deficiency and
remove the defect pointed out, or within thirty days of the order of refusal prefer an
appeal—
(a) where the order of refusal has been passed by an additional registrar, a joint registrar,
a deputy registrar or an assistant registrar, to the registrar; and
(b) where the order of refusal has been passed, or upheld in appeal, by the registrar, to the
Authority.
(5) An order of the Authority under subsection (4) shall be final and shall not be called in
question before any Court or other authority.
Articles of Association:
1. Subordinate to memorandum
Prospectus:
Prospectus has been defined in section 2(29) of the ordinance which is reproduced below:
“prospectus” means any document described or issued as prospectus, and includes any
notice, circular, advertisement, or other communication, inviting offers from the public
for the subscription or purchase of any shares in, or debenture of, a body corporate, or
inviting deposits from the pubic, other than deposits invited by a banking company or a
financial institution approved by the Federal Government, whether described as
prospectus or otherwise;
• An invitation to public
• Invitation should be for subscription to shares or debentures
• Invitation to be made on behalf of a company
Contents of Prospectus:
The different aspects with reference to prospectus are contained in section 45, 53, and
section 69 of the ordinance which is reproduced below:
Prospectus or statement in lieu of prospectus to be fled by private company on
ceasing to be private company:—Sec. 45
(1) If a company, being a private company, alters its articles in such a manner that they
no longer include the provisions which, under clause (28) of subsection (1) of section 2,
are required to be included in the articles of a company in order to constitute it a private
company, the company (a) shall, as on the date of the alteration, cease to be a private
company, and (b) shall, within a period of fourteen days after the said date, file with the
registrar either a prospectus or a statement in lieu of prospectus as specified in subsection
(2) or sub section (3).
(2) Every prospectus filed under subsection (1) shall state the matters specified in section
1 of Part I of the Second Schedule and set out the reports specified in section 2 of that
Part, and the said sections 1 and 2 shall have effect subject to the provisions contained in
section 3 of that Part.
(3) Every statement in lieu of prospectus filed under subsection (1) shall be in the form
and contain the particulars set out in section I of Part III of the Second Schedule and, in
the cases mentioned in section 2 of that Part, set out the reports specified therein, and the
said sections 1 and 2 shall have effect subject to the provisions contained in section 3 of
that part.
(4) Where the persons making any such report as is referred to in subsection (2) or
subsection (3) have made therein, or have, without giving reasons indicated therein, made
any such adjustments as are mentioned in clause 3 6 of Part I of the Second Schedule or
clause 5 of section 3 of Part III of the Second Schedule, as the case may be, the
prospectus or statement in lieu of prospectus filed as aforesaid shall have endorsed
thereon or attached there-to a written statement, signed by those persons, setting out the
adjustments and giving the reasons thereof.
(5) If default is made in complying with the provisions of any of the preceding
subsections, the company, and every officer of the company who is in default, shall be
punishable with fine which may extend to five thousand rupees and to a further fine not
exceeding one hundred rupees for every day after the first during which the default
continues.
(6) Where any prospectus or statement in lieu of prospectus filed under sub-section (1)
includes any untrue statement, any person who authorised the filing of such prospectus or
statement shall be punishable with imprisonment for a term which may extend to two
years, or with fine which may extend to ten thousand rupees, or with both, unless he
proves either that the statement was immaterial or that he had reasonable ground to
believe, and did, up to the time of the filing of the prospectus or statement, believe, that
the statement was true.
(7) For the purposes of sub section (6)– (a) a statement included in a prospectus or a
statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form
and context in which it is included; and (b) where the omission from a prospectus or a
statement in lieu of prospectus of any matter is calculated to mislead, the prospectus or
statement in lieu of prospectus shall be deemed, in respect of such omission, to be a
prospectus or a statement in lieu of prospectus in which an untrue statement is included.
(8) For the purposes of subsection (6) and clause (a) of subsection (7), the expression
“included” when used with reference to a prospectus or statement in lieu of prospectus,
means included in the prospectus or statement in lieu of prospectus itself or contained in
any report or memorandum appearing on the face thereof, or by reference incorporated
therein.
(3) If a prospectus is issued which does not comply with the provisions of subsection (I)
or sub section (2), every person who is knowingly responsible for the issue of such
prospectus shall be liable to a fine not exceeding ten thousand rupees and in the case of a
continuing default to a further fine not exceeding two hundred rupees for every day from
the day of the issue of the prospectus until a prospectus complying with the requirements
aforesaid is issued and a copy thereof is filed with the registrar.
(5) No one shall issue any form of application for shares in or debentures of a company,
unless the form is accompanied by a prospectus which complies with requirements of this
section: Provided that this subsection shall not apply if it is shown that the form of
application was issued either- (i) in connection with a bona fide invitation to a person to
enter into an underwriting agreement with respect to the shares or debentures; or (ii)) in
relation to shares or debentures which were not offered to the public.
(6) If any person acts in contravention of the provisions of subsection (5) he shall be
liable to a fine not exceeding two thousand rupees.
(7) A director or other person responsible for the prospectus shall not incur any liability
by reason of any non-compliance with, or contravention of, any of the requirements of
this section, if– (a) as regards any matter not disclosed, he proves that he had no
knowledge thereof, or (b) he proves that the non-compliance or contravention arose from
an honest mistake of fact on his part; or (c) that non-compliance or contravention was in
respect of matters which, in the opinion of the registrar or officer dealing with the case,
were immaterial or was otherwise such as ought, in the opinion of the registrar or officer,
as the case may be, having regard to all the circumstances of the case, reasonably to be
excused: Provided that no director or other person shall incur any liability in respect of
the failure to include in a prospectus a statement with respect to the matters specified in
clause 18 of Part I of the Second Schedule, unless it is proved that he had knowledge of
the matters not disclosed.
(8) This section shall not apply– (a) to the issue to existing members or debenture-holders
of a company of a prospectus or form of application relating to shares in or debentures of
the company, whether an applicant for shares or debentures will or will not have the right
to renounce in favour of other persons; or (b) to the issue of a prospectus or form of
application relating to shares or debentures which are, or are to be, in all respects uniform
with shares or debentures previously issued and for the time being dealt in or quoted on a
stock exchange, but, Subject as aforesaid, this section shall apply to a prospectus or a
form of application, whether issued on or with reference to the formation of a company or
subsequently, (9) Nothing in this section shall limit or diminish any liability which any
person may incur under the general law or under any other provision of this Ordinance.
(1) A company having a share capital, which does not issue a prospectus on or with
reference to its formation, or which has issued such a prospectus but has not proceeded to
allot any of the shares offered to the public for subscription, shall not allot any of its
shares or debentures unless, at least three days before first allotment of either share or
debenture, there has been delivered to the registrar for registration a statement in lieu of
prospectus signed by every person who is named therein as a director or proposed
director of the company or by his agent authorised in writing, in the form and containing
the particulars set out in section I of Part 11 of the Second Schedule and, in the cases
mentioned in section 2 of that Part, setting out the reports specified therein, and the said
sections 1 and 2 shall have effect subject to the provisions contained in section 3 of that
Part.
(2) Every statement in lieu of prospectus delivered under subsection (1), where the
persons making any such report. as aforesaid have made therein, or have without giving
the reasons indicated therein, made any such adjustments as are mentioned in clause (5)
of Part 11 of the Second Schedule, shall have endorsed thereon or attached thereto a
written statement signed by those persons, setting out the adjustments and giving the
reasons thereof.
(4) If a company acts in contravention of subsection (I) or subsection (2), the company,
and every officer of the company who wilfully authorises or permits the contravention,
shall be liable to a fine not exceeding five thousand rupees and in the case of a continuing
contravention with a further fine not exceeding one hundred rupees for every day after
the first during which the contravention continues.
(5) Where a statement in lieu of prospectus delivered to the registrar under subsection (I)
included any untrue statement, any person who signed or authorised the delivery of the
statement in lieu of prospectus for registration shall be punishable with imprisonment for
a term which may extend to two years or with fine which may extend to ten thousand
rupees, or with both, unit he proves either that the statement was immaterial or that he
had reasonable ground to believe and did up to the time of the delivery for registration of
the statement in lieu of prospectus believe, that the statement was trust.
(6) For the purposes of this section,– (a) a statement included in a statement in lieu of
prospectus shall be deemed to be untrue if it is misleading in the form and context in
which it is included; and (b) where the omission from a statement in lieu of prospectus of
any matter is calculated to mislead, the statement in lieu of prospectus shall be deemed,
in respect of such omission, to be a statement in lieu of prospectus in which an untrue
statement is included.
(7) For the purposes of subsection (5) and clause (a) of subsection (6), the expression
“included”, when used
&
WINDING UP OF COMPANIES
Non Banking Finance Companies (NBFCs’) include the companies licensed by Securities
and Exchange commission of Pakistan ( SECP) and such other company or class of
companies or corporate body as the Federal Government may, by notification in the
official Gazette specify for the purpose.
(a) non-banking finance companies (NBFCs) which include companies licensed by the
Commission to carry out any one or more of the following forms of business, namely: -
(ii) Leasing;
(viii) any other form of business which the Federal Government may, by notification in
the official Gazette specify from time to time; and
(b) such other company or class of companies or corporate body as the Federal
Government may, by notification in the official Gazette specify for the purpose.
The Federal Government may make rules for establishment and regulation of NBFCs and
such rules may, inter alia, in addition to anything already provided in this Ordinance,
provide for conditions relating to qualifications of directors, chief executive, chairman,
auditors, for licensing, capital and audit requirements; and any other matter which the
Commission may deem fit for the effective regulation of NBFCs and / companies
established under the rules framed hereunder.
(1) A NBFC shall not be incorporated without prior approval of the Commission.
(3) The Commission, if it is satisfied that the company has fulfilled the conditions
prescribed by the Commission in respect of the business for which the licencse is being
sought, may grant license (s) to such company for one or more of the forms of business
specified in section 282 A.
(4) A NBFC shall not commence or carry on business unless it has such minimum paid
up capital as may be prescribed by the Commission from time to time in respect of each
form of business as specified in section 282 A
(1) Notwithstanding anything contained in any other provision of this Ordinance, where
the Commission is satisfied that it is necessary and expedient so to do –
(b) to prevent the affairs of any NBFC being conducted in a manner detrimental to the
interests of shareholders or persons whose interests are likely to be effected or in a
manner prejudicial to the interests of the NBFC; or
(c) to secure the proper management of any NBFC generally, issue directions to NBFCs
generally or to any NBFC in particular to carry out such changes as are necessary to
rectify the situation and the NBFCs shall be bound to comply with such directions.
(2) The Commission may, on representation made to it or on its own motion, modify or
cancel any direction issued under sub-section (1), and in so modifying or canceling any
direction may impose such conditions as it thinks fit.
(1) Notwithstanding anything contained in any other provision of this Ordinance, where
the Commission is satisfied that –
(a) continued association of any chairman or director or chief executive or any other
officer of a NBFC, is or is likely to be detrimental to the interests of NBFC or its
shareholders or persons whose interest is likely to be affected; or
(d) to secure a proper management of the NBFC, it is necessary so to do, the Commission
may, for reasons to be recorded in writing, by order, remove from office, with effect from
such date as may be specified in the order, any chairman or director or chief executive or
other officer of the NBFC.
No order under sub-section (1) shall be made unless the chairman or director or chief
executive or other officer has been given a reasonable opportunity of making a
representation and of being heard:
Provided that if, in the opinion of the Commission, any delay would be detrimental to the
public interest or the interest of its shareholders, the Commission may, at the time of
giving the opportunity aforesaid or at any time thereafter and pending the consideration
of the representation aforesaid, if any, by order direct that—
(i) the chairman or, director or chief executive or other officer shall not, with effect from
the date of the order.-
the NBFC; or
(b) in any way, whether directly, or indirectly, be concerned with, or take part in the
management of the NBFC;
(ii) any person authorized by the Commission in this behalf shall act as such chairman or
director or chief executive of the NBFC till another person is elected in a general meeting
or a board meeting , as may be directed by the Commission, to fill in the vacancy.
Where any order under sub-section (1) is made in respect of a chairman or director or
chief executive or other officer of a NBFC, he shall cease to be a chairman or a director
or chief executive or other officer of the NBFC and shall not in any way, whether directly
or indirectly, be concerned with, or take part in, the management of the NBFC or any
other NBFC for such period not exceeding three years as may be specified in the order.
Any person appointed as chairman or director or chief executive under sub-section (2)
shall—
(a) hold office during the pleasure of the Commission subject to such conditions as may
be specified in the order of his appointment and, subject thereto, for such period, not
exceeding three years as the Commission may specify; and
(b) not incur any obligation or liability for anything which is done or intended to be done
in his capacity as such chairman or director or chief executive.
No person removed from office under sub-section (1) shall be entitled to claim any
compensation for the loss or termination of office.
Notwithstanding anything contained in any other provision of this Ordinance, where the
Commission is satisfied that the association of the Board of Directors of any NBFC is or
is likely to be detrimental to the interest of the NBFC or its shareholders or is otherwise
undesirable; or for all or any of the reasons specified in section 282 E; it is necessary so
to do, the Commission may, for reason to be recorded in writing, by order, supersede the
Board of Directors of a NBFC with effect from such date and for such period as may be
specified in the order.
(2) The period of supersession specified in an order under sub-section (1) may from time
to time be extended by the Commission so, however, that the total period of supersession
does not exceed three years.
(iii) conducting its business in a manner oppressive to any of its members or persons
concerned with the formation or promotion of the company or the minority shareholders;
(iv) run and managed by persons who fail to maintain proper and true accounts, or
commit fraud, misfeasance or malfeasance in relation to the company; or
(v) managed by persons who refuse to act according to the requirements of the
memorandum or articles or the provisions of this Ordinance or fail to carry out the
directions or decisions of the Court or the registrar or the Commission given in the
exercise of powers under this Ordinance;
(j) if the Court is of opinion that it is just and equitable that the company should be
wound up; or
Explanation I. - The promotion or the carrying on of any scheme or business, except the
business carried on under the provisions of the Insurance Act, 1938 (IV of 1938),
howsoever described, whereby, in return for a deposit or contribution, whether
periodically or otherwise, of a sum of money in cash or by means of coupons, certificates,
tickets or other documents, payment, at future date or dates of money or grant of
property, right or benefit, directly or indirectly, and whether with or without any other
right or benefit, determined by chance or lottery or any other like manner, is assured or
promised shall be deemed to be an unlawful activity.
Explanation ll. – “Minority shareholders” means shareholders together holding not less
than twenty per cent of the equity share capital of the company.
(b) if execution or other process issued on a decree or order of any Court or any other
competent authority in favor of a creditor of the company is returned unsatisfied in whole
or in part; or
(c) if it is proved to the satisfaction of the Court that the company is unable to pay its
debts, and, in determining whether a company is unable to pay its debts, the Court shall
take into account the contingent and prospective liabilities of the company.
(2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been
duly given under the hand of the creditor if it is signed by an agent or legal adviser duly
authorized on his behalf, or in the case of a firm if it is signed by such agent or legal
adviser or by any member of the firm on behalf of the firm.
Winding Up:
We have already discussed the modes and process of winding up, some other aspects
regarding winding up are discussed in the following paragraphs.
A winding up of a company by the Court shall be deemed to commence at the time of the
presentation of the petition for the winding up.
A petition for winding up of a company shall come up for regular hearing, be proceeded
with and decided in the manner laid down in section 9.
(1) On hearing a winding up petition the Court may dismiss it with or without costs, or
adjourn the hearing conditionally or unconditionally subject to the limitation imposed in
section 9 or make any interim order, or any order for winding up the company or any
other order that it deems just; but the Court shall not refuse to make a winding up order
on the ground only that the assets of the company have been mortgaged to an amount
equal to or in excess of those assets, or that the company has no assets.
(2) Where the petition is presented on the ground that it is just and equitable that the
company should be wound up, the Court may refuse to make an order of winding up, if it
is of opinion that some other remedy is available to the petitioners and that they are
acting unreasonably in seeking to have the company wound up instead of pursuing that
other remedy.
(3) Where the petition is presented on the ground of default in delivering the statutory
report or in holding the statutory meeting or any two consecutive annual general
meetings, the Court may, instead of making a winding up order, direct that the statutory
report shall be delivered or that a meeting shall be held, and order the costs to be paid by
any persons who, in the opinion of the Court, are responsible for the default.
(4) If, on hearing a petition, the Court is of opinion that, although the facts would justify
the making of a winding up order, the making of such order would unfairly prejudice the
members or the creditors, the Court may, instead of making an order for winding up the
company, make such order as it thinks fit in the circumstances for regulations the conduct
of the affairs of the company and bringing to an end the matters complained of, including
an order for a change in the management of the company.
(5) Where the Court makes an order for the winding up of a company, it shall forthwith
cause intimation thereof to be sent to the official liquidator appointed by it and to the
registrar.
(1) Within fifteen days from the date of the making of the winding up order, the
petitioner in the winding up proceedings and the company shall file a certified copy of
the order with the registrar.
(2) If default is made in complying with the foregoing provision, the petitioner or, as the
case may require, the company, and every officer of the company who is in default, shall
be punishable with fine which may extend to one hundred rupees for each day during
which the default continues.
(3) On the filing of a certified copy of a winding up order, the registrar shall forthwith
make a minute thereof in his books relating to the company, and shall simultaneously
notify in the official Gazette that such an order has been made.
(4) Such order shall be deemed to be notice of discharge to the servants of the company,
except when the business of the company is continued.
(1) When a winding up order has been made or a provisional managers has been
appointed, no suit or other legal proceeding shall be proceeded with or commenced
against the company except by leave of the Court, and subject to such terms as the Court
may impose.
(2) The Court which is winding up the company shall, notwithstanding anything
contained in any other law for the time being in force, have jurisdiction to entertain, or
dispose of, any suit or proceeding by or against the company.
(3) Any suit or proceeding by or against the company which is pending in any Court
other than that in which the winding up of the company is proceeding may,
notwithstanding anything contained in any other law for the time being in force, be
transferred to and disposed of by the Court.
(a) if any suit or proceedings, including an appeal, by or against the company which is
allowed to be proceeded with in any Court other than the Court in which winding up of
the company is proceeding, the Court may issue directions to that other Court if that court
is subordinate to it and, in any other case, make a request to that other Court for
expeditious disposal of the pending suit or proceeding by or against the company; and
(b) if any proceedings, including proceedings for assessment or recovery of any tax, duty
or levies or appeal or review petition against any order is pending or is likely to be
instituted, before any officer, tribunal, authority or other body, the Court may issue
directions to that officer, tribunal, authority or other body for expeditious action and
disposal of the said proceedings.
(2) Upon issue of a direction or making of a request as aforesaid, the Court, officer,
tribunal, authority or body to whom the same is addressed shall, notwithstanding
anything contained in any other law proceed to dispose of the said suit or other
proceedings expeditiously by according it special priority and adopting such measures as
may be necessary in this behalf, and shall inform the Court issuing the direction or
making the request of the action taken.
An order for winding up a company shall operate in favor of all the creditors and of all
the contributories of the company as if made on the joint petition of a creditor and of a
contributory.
(1) When the affairs of a company have been completely wound up, or when the Court is
of the opinion that the official liquidator cannot proceed with the winding up of the
company for want of funds and assets or any other reason whatsoever and it is just and
reasonable in the circumstances of the case that an order of dissolution of the company be
made, the Court shall make an order that the company be dissolved from the date of the
order, and the company shall be dissolved accordingly:
Provided that such dissolution of the company shall not extinguish any right of, or debt
due to, the company against or from any person.
(2) A copy of the order shall, within fifteen days of the making thereof, be forwarded by
the official liquidator to the registrar, who shall make in his books a minute of the
dissolution of the company.
(3) If the official liquidator makes default in complying with the requirements of this
section, he shall be liable to a fine not exceeding one hundred rupees for every day during
which he is in default.
(a) when the period (if any) fixed for the duration of the company by the articles expires,
or the event (if any) occurs, on the occurrence of which the articles provide that the
company is to be dissolved and the company in general has passed a resolution requiring
the company to wound up voluntarily;
(b) if the company resolves by special resolution that the company be wound up
voluntarily; and, in the subsequent provisions of this Part, the expression “resolution for
voluntary winding up” means a resolution passed under clause (a) or clause (b).
A voluntary winding up shall be deemed to commence at the time of the passing of the
resolution for voluntary winding up.
360. Effect of voluntary winding up on status of company.-
In the case of voluntary winding up, the company shall, from the commencement of the
winding up, cease to carry on its business, except so far as may be required for the
beneficial winding up thereof:
Provided that the corporate state and corporate powers of the company shall,
notwithstanding anything to the contrary in its articles, continue until it is dissolved.
(1)This Act may be called as the Securities and Exchange Commission of Pakistan Act,
1997.
(a) “appointed day” means the day on which section 43 comes into force;
(b) “Authority” means the Corporate Law Authority constituted under the Companies
Ordinance, 1984 (XLVII of 1984);
(c) “Board” means the Securities and Exchange Policy Board established under section
12;
(e) “civil servant” means a civil servant as defined in section 2 of the Civil Servants Act,
1973 (LXXI of 1973);
(f) “clearing house” means a clearing house by whatever name or designation established
or arranged to be established by a Stock Exchange for the registration of dealing in
securities or settlement of trading in futures contracts;
(h) “Commissioner” means a Commissioner of the Commission and shall include the
Chairman thereof;
(i) “committee” means a committee of the Board constituted under section 15;
(i) any agreement for or with a view to acquiring, disposing of, subscribing for or
underwriting securities, or
(ii) any agreement the apparent or ostensible purpose of which is to secure a profit to any
of the parties from the yield of securities or by reference to fluctuations in the value of
securities;
(la) “Law of Insurance” means the Insurance Ordinance, 2000 (XXXIX of 2000) or any
other law in relation to insurance, the administration of which is vested in the
Commission by the Federal Government by notification in the official Gazette.”
(p) “private sector person” means a person who is not in the service of Pakistan or of any
statutory body or any body which is owned or controlled by the Federal Government or a
Provincial Government not including a University or an educational institution;
(q) “regulations” means the regulations made by the Board or the Commission; and
(1) There is hereby established a Commission to be called the Securities and Exchange
Commission of Pakistan.
(2) The Commission shall be a body corporate with perpetual succession and a common
seal, and may sue and be sued in its own name and, subject to and for the purposes of this
Act, may enter into contracts and may acquire, purchase, take, hold and enjoy movable
and immovable property of every description and may convey, assign, surrender, yield
up, charge, mortgage, demise, reassign, transfer or otherwise dispose of or deal with, any
movable or immovable property or any interest vested in it, upon such terms as it deems
fit.
(1) Subject to sub-section (2), the Commission shall consist of such number of
Commissioners, including the Chairman, appointed by the Federal Government as may
be fixed by the Federal Government but such number shall not be less than five and more
than seven. A Commissioner shall be a person who is known for his integrity, expertise,
experience and eminence in any relevant field, including the securities market, law,
accountancy, economics, finance[, insurance] and industry.
(2) The majority of the Commissioners shall always be of private sector persons.
(3) Subject to the provisions of this Act, the Commission shall, in discharge of its
functions and exercise of its powers, conduct its proceedings in accordance with the
regulations made by the [Commission]. [(4)] The Commissioners, including the
Chairman, shall be paid such remuneration and allowances as the Commission may, with
the approval of the Board, determine.
The Chairman-sec. 6
(1) The Federal Government shall appoint one of the Commissioners to be the Chairman
of the Commission, and no Commissioner shall be appointed Chairman for more than
two consecutive terms.
(2) The Chairman shall be the chief executive officer of the Commission and shall,
together with the other Commissioners, be responsible for the day to day administration
of the affairs of the Commission and shall, subject to the regulations made by the
Commission, be assisted by the other Commissioners in carrying out the functions of the
Commission.
The Commission shall be responsible for the performance of the following functions:
(b) Regulating the business in Stock Exchanges and any other securities markets;
(c) Supervising and monitoring the activities of any central depository and Stock
Exchange clearing house;
(d) Registering and regulating the working of stock brokers, sub-brokers, share transfer
agents, bankers to an issue, trustees of trust deeds, registrars to an issue, underwriters,
portfolio managers, investment advisers and such other intermediaries who may be
associated with the securities markets in any manner;
(e) Proposing regulations for the registration and regulating the working of collective
investment schemes, including unit trust schemes;
(g) Prohibiting fraudulent and unfair trade practices relating to securities markets;
(i) Conducting investigations in respect of matters related to this Act and the Ordinance
and in particular for the purpose of investigating insider trading in securities and
prosecuting offenders;
(j) Regulating substantial acquisition of shares and the merger and take-over of
companies;
(k) Calling for information from and undertaking inspections, conducting inquiries and
audits of the Stock Exchanges and intermediaries and self-regulatory organizations in the
securities market;
(l) considering and suggesting reforms of the law relating to companies and bodies
corporate, securities markets, including changes to the constitution, rules and regulations
of companies and bodies corporate, Stock Exchanges or clearing houses;
(m) Encouraging the organized development of the capital market and the corporate
sector in Pakistan;
(n) Conducting research in respect of any of the matters set out in this sub-section;
We shall continue with the powers and functions of the commission in later discussion.
• risk management;
• human resource management including preparation of a succession plan;
• procurement of goods and services;
• marketing;
• determination of terms of credit and discount to customers;
• write-off of bad/ doubtful debts, advances and receivables;
• acquisition/ disposal of fixed assets;
• investments;
• borrowing of moneys and the amount in excess of which borrowings shall be
sanctioned/ratified by a general meeting of shareholders;
• donations, charities, contributions and other payments of a similar nature;
• determination and delegation of financial powers;
• transactions or contracts with associated companies and related parties; and
• health, safety and environment
(e) appointment, remuneration and terms and conditions of employment of the Chief
Executive Officer (CEO) and other executive directors of the listed company are
determined and approved by the Board of Directors; and
(f) in the case of a modaraba or a Non-Banking Financial Institution, whose main
business is investment in listed securities, the Board of Directors approve and adopt an
investment policy, which is stated in each annual report of the modaraba/ Non-Banking
Financial Institution.
Explanation: The investment policy shall inter alia state:
The Net Asset Value of each modaraba/ Non-Banking Financial Institution shall be
provided for publication on a monthly basis to the stock exchange on which its shares/
certificates are listed.
(ix) The Chairman of a listed company shall preferably be elected from among
the non-executive directors of the listed company. The Board of Directors
shall clearly define the respective roles and responsibilities of the Chairman and Chief
Executive, whether or not these offices are held by separate individuals or the same
individual.
Significant issues for this purpose may include:
• Annual business plans, cash flow projections, forecasts and long term plans;
• Budgets including capital, manpower and overhead budgets, along with variance
analyses;
• Quarterly operating results of the listed company as a whole and in terms of its
operating divisions or business segments;
• Internal audit reports, including cases of fraud or irregularities of a material
nature;
• Management letter issued by the external auditors;
• Details of joint venture or collaboration agreements or agreements with
distributors, agents, etc;
• Promulgation or amendment of a law, rule or regulation, enforcement of an
accounting standard and such other matters as may affect the listed company;
• Status and implications of any law suit or proceedings of material nature, filed by
or against the listed company;
• Any show cause, demand or prosecution notice received from revenue or
regulatory authorities, which may be material;
• Default in payment of principal and/or interest, including penalties on late
payments and other dues,
• to a creditor, bank or financial institution or default in payment of public deposit;
• Failure to recover material amounts of loans, advances, and deposits made by the
listed company, including trade debts and inter-corporate finances;
• Any significant accidents, dangerous occurrences and instances of pollution and
environmental problems involving the listed company;
• Significant public or product liability claims likely to be made against the listed
company, including any adverse judgment or order made on the conduct of the
listed company or of another company that may bear negatively on the listed
company;
• Disputes with labour and their proposed solutions, any agreement with the labour
union or collective Bargaining Agent and any charter of demands on the listed
company; and
• Payment for goodwill, brand equity or intellectual property
NEGOTIABLE INSTRUMENTS
Concept/Object/Purpose:
The object and purpose of the Act is to legalize the system under which claims upon
certain mercantile instruments are treated like ordinary goods passing from hand to hand.
The Act is not exhaustive of all matters relating to negotiable instruments nor does it
purport to deal with all kinds of negotiable instruments. It merely regulates the issue and
negotiations of bills notes and cheques and even as regards them it does not deal with its
transmissions of rights in them by operation of law or by assignment by deed. In the
absence of any express provisions in this Act to the contrary, the general rules contained
in the Contract Act are applicable to such instruments as to obligations of parties to the
negotiable instruments are contractual in nature. For example the Act does not declare
what consideration is sufficient and valid for a bill or note and therefore any
consideration which will support a simple contract will support a bill or a note also.
This clause as provided in section 3 of the Negotiable Instrument Act 1881 is reproduced
here under:
In this Act, unless there is anything repugnant in the subject or context:-
(a) “accommodation party” means a person who has signed a negotiable instrument as a
marker, drawer acceptor or endorser without receiving the value thereof and for the
purpose of lending his name to some other person;
(b) “banker” means a person transacting the business of accepting, for the purpose of
lending or investment, of or deposits of money from the public, repayable on demand
otherwise withdrawable by cheque, draft, order, or otherwise, and includes any Post
Office Savings Bank;.
(c) “bearer” means a person who by negotiable comes into possession of a negotiable
instrument, which is payable to bearer,
(d) “delivery” means transfer of possession actual or constructive, from one person to
another;
(e) “issue” means the first delivery of a promissory notice, bill of exchange of cheque
complete in form to a person’ who takes it as holder .
(f) “material alteration” in relation to a Promissory note, bill, of exchange or cheque
includes an alteration of the date, the sum payable, the time of payment, the of payment,
and, where any such instrument has been accepted generally, the addition of a place of
payment without the acceptor’s assent, and
(g) “notary public” includes any person appointed by the Central Government to perform
the functions of notary public under this Act and a notary appointed under the Notaries
Ordinance, 1961.
Explanation:
The words “material alteration” are not defined in the Act, but in the definition clause
with reference to negotiable instrument these words are followed by “include”, which has
an effect of enlarging the scope of the already understood meaning of the words. The
definitions extends the scope of the words to take into its folds the change or alteration in
relation to the date, sum payable, time and place of payment with reference to negotiable
instrument. It means any material and substantial change, variation, modification,
substitution, insertion, erosion, addition or alteration in the contents or body of the
negotiable instrument including any alteration of date, the sum payable, the time and
place of payment after its due execution which affects the rights, liabilities or legal
position of a party.
Some of the important concepts as discussed in the Act are given below:
Negotiable means the quality of transferability by delivery or by endorsement and
delivery.
Instrument means a written document by which a right is created in favor of some person.
Negotiable Instrument means a written document, which is freely transferable and which
creates a right in favor of some person to receive some money.
Negotiable Instrument as defined in section 13 of the Act is given below:
“A negotiable instrument means a promissory note, bill of exchange or cheque payable
either to order or to bearer”.
The Act besides above three negotiable instruments recognizes any other instrument
satisfying the characteristics of negotiability, as a Negotiable Instrument.
Quasi Negotiable Instruments- (Instruments recognized as such)
• Dividend Warrants
• Share Warrants
• Bearer Debentures
• Government Promissory Notes etc.
Promissory Note
It has been defined in section 4 of the Act which is given here under: “A promissory note
is an instrument in writing (not being a bank note or a currency note) containing
unconditional undertaking, signed by the maker to pay on demand or at a fixed or
determinable future time a certain sum of money only to or to the order of a certain
person, or to the bearer of the instrument.
Specimen of a Promissory
Rs. 100,000/- Lahore
August 20, 2007
Thirty days after date, I promise to pay Mr. Ahmad Kamal or order the sum of rupees one
hundred
thousand only for value received.
Signature Revenue Stamp
Yasir Mehmood
(The Maker)
The Notes given below do not qualify to be called promissory note in the light of
definition contained in
section 4:
Thirty days after date, I promise to pay Mr. Ahmad Kamal or order the sum of rupees one
hundred thousand only and the amounts which may be due to Ahmed Kamal by due date.
This is not the promissory note since the amount promised is not certain and ascertainable
on the date of making the promise/ undertaking.
The notes given below do not qualify to be called promissory note in the light of
definition contained in section 4
NEGOTIABLE INSTRUMENTS
Promissory Note
As we already know that there are following parties in a promissory note
• Maker &
• Payee
• In writing
• Promise to pay
• Unconditional promise
• Signed by maker
• Maker a certain person
• Payee is a certain person
• Certain sum
• Legal tender money to be paid
• Time of payment
• Other formalities.
Bill of Exchange
It is an important form of a negotiable instrument and has been defined in section 5 of the
Act, the said definition is reproduced below:
“A bill of exchange is an instrument in writing containing an unconditional order, signed
by maker,
directing a certain person, to pay on demand or at fixed or determinable future time a
certain sum of money only to, or to the order of, a certain person or to the bearer of the
instrument”.
Specimen of Bill of Exchange
Rs. 100,000/- Lahore
August 20, 2007
Ninety days after date, pay to Mr. Ahmad Kamal or order rupees one hundred thousand
only for value received
Signature Accepted by Yasir Mehmood Drawee XYZ (Drawee) (Drawer)
Revenue Stamp
Essentials of Bill of Exchange
These are outlined here under:
• In writing
• Order to pay
• Unconditional order
• Signed by the drawer
• Drawee certain person
• Time of payment
• Certain sum
• Legal tender money
• Payee certain person
• Other formalities
• Date
• Place
• Lawful consideration
• Revenue stamp
• In a promissory note the maker is the principal debtor. In the case of bill of
exchange the drawer is surety.
• A bill of exchange can be accepted conditionally while a promissory note cannot
be so made.
• A pronote cannot be made payable to the maker himself. In a bill of exchange this
is possible and one
person may become both drawer and payee or both drawee and payee.
In promissory notes there are two parties—the promisor and the promisee (the maker and
the payee). In the case of bills of exchange there are three parties—the drawer (who
makes the order), the drawee, the bill
is drawn).
• The most important distinction is that in the case of a promissory note the maker
unconditionally undertakes to pay the amount mentioned in the pronote while in
the case of a bill of exchange or hundi the
Kinds of Endorsement:
The endorsements are divided as under:
• Blank or general.
• Full or special endorsement.
• Restrictive endorsement
• Partial endorsement
• Minor: He can draw an instrument but cannot be sued in his own name.
• Person of unsound mind: such person is incompetent to draw, make, endorse and
negotiate an instrument
• Insolvent: in case of insolvency, property is vested in official receiver, hence
insolvent person is not a
TRANSFER OF PROPERTY
Matters relating to Transfer of property are governed by Transfer of Property Act, 1882.
We shall focus on the following areas:
Transfers of property by act of parties. (Properties whether movable or immovable)
Transfer of Property:
It has been defined in section 5 of the Act which is given below:
In the following sections “transfer of property” means an act by which a living person
conveys
property, in present or in future, to one or more other living persons, or to himself and
one or more
other living persons; and “to transfer property” is to perform such act.
In this section “living person includes a company or association or body of individuals,
whether
incorporated or not, but nothing herein contained shall affect any law for the time being
in force relating to transfer of property to or by companies, associations or bodies of
individuals.
Transfer must be made by the owner of property “Living Person”: A juristic person is
also treated as a living person but a living person is not necessarily a living person in all
cases. However certain non-animate bodies with the rights of person are treated as living
person such as companies. “Gift to God Almighty”: is treated as transfer under the
provisions of this Act.
“Conveys”: use of the word ‘convey’ is not necessary condition leading to ‘transfer of
property’, if through the documents it is established that transfer of ownership has taken
place, it would constitute transfer of property.
“Creation of a charge” on a property does not lead to transfer of property.
“Family arrangement”: this is not a ‘transfer of property’. Agreement regarding share of
each party
“Property”: All properties for the purpose of this Act should be transferable or attachable
and saleable.
Some Examples of property:
“Property”: All properties for the purpose of this Act should be transferable or attachable
and salable.
Following are not to be treated as property:
• Parties
• Subject matter
• Transfer
• Price or consideration
Transfer of Ownership:
It means transfer of ownership rights in full and permanently by transferor in exchange
for price. Transferor must have title to the property being transferred.
• To produce to the buyer on his request for examination all documents of title
relating to the property which are in the seller’s possession or power;
• To answer to the best of his information all relevant questions put to him by the
buyer in respect to the property or the title thereto;
• On payment or tender of the amount due in respect of the price, to execute a
proper conveyance of the property when the buyer tenders it to him for execution
at a proper time and place;
• between the date of the contract of sale and the delivery of the property, to take as
such care of the property and all documents of title relating thereto which are in
his possession as an owner of ordinary prudence would take of such property and
documents;
• to give possession of the property
• to pay all public charges and rent accrued due in respect of the property up to the
date of the sale, Rights and liabilities of Buyer and Seller: Sec 55
• to the rents and profits of the property till the ownership thereof passes to the
buyer;
• where the ownership of the property has passed to the buyer before payment of
the whole of the purchase-money, to a charge upon the property in the hands of
the buyer, and for interest on such amount or part from the date on which
possession has been delivered.
Liabilities of Buyer:
• to disclose to the seller any fact as to the nature or extent of the seller’s interest in
the property of which
• the buyer is aware, but of which he has reason to believe that the seller is not
aware, and which materially increases the value of such interest;
• to pay or tender, at the time and place of completing the sale, the purchase-money
to the seller or such person as he directs Rights of Buyer (buyer is entitled)
• where the ownership of the property has passed to him, to the benefit of any
improvement in, or increase in value of, the property, and to the rents and profits
thereof;
• to a charge on the property, as against the seller and all persons claiming under
him, for the amount of any purchase-money properly paid by the buyer in
anticipation of the delivery and for interest on such amount;
Types of Mortgages:
There are two types of Mortgages which are given below:
• Registered Mortgage
• Equitable Mortgage
Equitable Mortgage:
Lessee
Premium
Rent
• The money, share, service or other thing to be so rendered is called the rent.
Essentials of a Lease:
Exchange:
It has been defined in section 118 of the Act which is given below:
When two persons mutually transfer the ownership of one thing for the ownership of
another, neither thing or both things being money only, the transaction is called an
“exchange”.
A transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale.
Gift
It has been defined in section 122 of the Act which is given below:
“Gift” is the transfer of certain existing movable or immovable property made voluntarily
and without consideration, by one person, called the donor, to another, called the donee,
and accepted by or on behalf of the donee.
Acceptance when to be made-Such acceptance must be made during the lifetime of the
donor and while he
is still capable of giving.
If the donee dies before acceptance, the gift is void.
Scope of Gifts- Intention, Delivery & Acceptance
• Consideration
• Donor’s competency
• Property both movable and immovable as well as existence of property
• donor’s death before acceptance by donee, the gift would be void.
• An agreement
• Parties (there must be two parties)
• Transfer of property (that is transfer of ownership)
• Sale of goods (movable property)
• The consideration being the price
• Sale
Goods:
It has been defined in section 2 ( 7) of the Act which is given below:
“Goods” means every kind of movable property other than actionable claims and money;
and includes 4[electricity, water, gas,] stock and shares, growing crops, grass, and things
attached to or forming part of the land which are agreed to be severed before sale or
under the contract of sale;
Classification of Goods:
• Existing Goods
• Future Goods
• Contingent Goods
Existing goods:
It has been defined in section 6(1) of the Act which is given below:
The goods which form the subject of a contract of sale may be either existing goods,
owned or possessed by the seller, or future goods.
Future goods:
It has been defined in section 2 (6) of the Act which is given below:
“Future goods” means goods to be manufactured or produced or acquired by the seller
after the making of the contract of sale;
Goods as contained in various provisions of the Act:
It has been defined in section 6 (2) of the Act which is given below:
There may be a contract for the sale of goods the acquisition of which by the seller
depends upon a contingency which may or may not happen.
Sale:
It has been defined in section 4 (3) of the Act which is given below:
Where under a contract of sale the property in the goods is transferred from the seller to
the buyer, the
contract is called a sale, but where the transfer of the property in the goods is to take
place at a future time or subject to some condition thereafter to be fulfilled, the contract is
called an agreement to sell. Agreement to sell:
• Contract of sale is comprised of sale as well as agreement to sell.
• When transfer of ownership in the goods is to be transferred from seller to buyer
at some future date, it shall be called as agreement to sell.
• Agreement to sell is not sale of goods.
• an implied warranty that the buyer shall have and enjoy quiet possession of the
goods;
If the contract does not expressly state any of the above terms then the provisions of
section 31 shall apply
Section 31 of the Act is reproduced under: –It is duty of the seller to deliver the goods
and of the buyer to accept and pay for them, in accordance with the terms of the contract
of sale.
Delivery—Defined
Delivery has been defined in section 2(2) of the Act which is reproduced below:
“Delivery” means voluntary transfer of possession from one person to another;
Modes of Delivery:
• Actual delivery
• Symbolic delivery
• Constructive delivery Significant Points Regarding Delivery of Goods:
• Duties of Seller and Buyer: Duty of the seller to deliver the goods and duty of the
buyer to accept and
pay for goods according to terms of the contract of sale. ( sec 31).
• Place of delivery: if place of delivery not mentioned in the contract then goods
will be delivered
• Expenses of delivery shall be borne by the seller if not otherwise provided in the
contract—sec 36(5)
• Delivery in installments: the buyer is not required to accept the goods in
installments if not otherwise provided in the contract. –sec 38
• Delivery to Carrier: Delivery of goods by the seller to the carrier shall be treated
to be the delivery of goods to the buyer. –sec 39
LAW OF TRUST
The law relating to trust is governed by the Trusts Act, 1882. It extends to the whole of
Pakistan. The provisions of this Act shall not affect the rules of Muhammadan Law as
regarding Waqf.
Some Important Terms Defined/ Explained in section 3 of the Act :
Trust:
A “trust” is an obligation annexed to the ownership of property, and arising out of a
confidence reposed in and accepted by the owner, or declared and accepted by him, for
the benefit of another, or of another and the owner
Author of the Trust:
The person who reposes or declares the confidence is called the “author of the trust”
Trustee:
The person who accepts the confidence is called the “trustee”
Beneficiary:
The person for whose benefit the confidence is accepted is called the “beneficiary “
Trust Property or Trust Money:
The subject matter of the trust is called “trust property” or “trust money
Beneficial Interest or Interest:
The “beneficial interest” or “interest” of the beneficiary is his right against the trustee as
owner of the trust property
Instrument of Trust:
Instrument, if any, by which the trust is declared is called the “instrument of trust”
Breach of Trust:
A breach of any duty imposed on a trustee is called a breach of trust.
Registered:
“registered” means registered under the law for the registration of documents for the time
being in force
Purpose of Trust:
A trust may be created for any lawful purpose. If the purpose is unlawful, the trust would
be void.
The purpose of a trust is lawful unless it is:
(a) forbidden by law, or
(b) is of such a nature that, if permitted, it would defeat the provisions of any law, or
(c) is fraudulent, or
(d) involves or implies injury to the person or property of another, or
(e) the Court regards it as immoral or opposed to public policy.
Declaration of Trust:
It has been defined in sec 5 of the Act which is reproduced below:
No trust in relation to immoveable property is valid unless declared by a non
testamentary instrument in writing signed by the author of the trust or the trustee and
registered, or by the will of the author of the trust or of the trustee.
No trust in relation to moveable property is valid unless declared as aforesaid, or unless
the ownership of the property is transferred to the trustee.
These rules do not apply where they would operate so as to effectuate a fraud.
Creation of Trust:
It has been defined in sec 6 of the Act which is reproduced below:
A trust is created when the author of the trust indicates with reasonable certainty by any
words or acts
(a) an intention on his part to create thereby a trust,
(b) the purpose of the trust,
(c) the beneficiary, and
(d) the trust property, and (unless the trust is declared by will or the author of the trust is
himself to be the trustee) transfers the trust property to the trustee.
By whom a Trust may be created:
It has been defined in sec 7 of the Act which is reproduced below:
Trust may be created:
• by every person competent to contract; and
• with the permission of a principal Civil Court of original jurisdiction, by or on behalf of
a minor; but
subject in each case to the law for the time being in force as to the circumstances and
extent in and to which the author of the trust may dispose of the trust property
Scope of Beneficiary: Sec 9:
It has been defined in sec 9 of the Act
• Every person capable of holding property may be a trustee; but, where the trust
involves the exercise of
Duties of Trustees:
Duty to fulfill the purpose of the trust: It has been defined in sec 11 of the Act which is
reproduced below:
The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the
author of the trust
given at the time of its creation, except as modified by the consent of all the beneficiaries
being competent
to contract. Where the beneficiary is incompetent to contract, his consent may, for the
purposes of this section, be given by a principal Civil Court of original jurisdiction.
Duty to acquaint himself with the nature and circumstances of a Trust Property:
It has been defined in sec 12 of the Act which is reproduced below:
A trustee is bound to acquaint himself, as soon as possible, with the nature and
circumstances of the trust property; to obtain, where necessary, a transfer of the trust
property to himself; and (subject to the provisions of the instrument of trust) to get in
trust moneys invested on insufficient or hazardous security.
Duty to Maintain and Defend Suits:
It has been defined in sec 13 of the Act which is reproduced below:
A trustee is bound to maintain and defend all such suits, and (subject to the provisions of
the instrument of trust) to take such other steps as, regard being had to the nature and
amount or value of the trust property, may be reasonably requisite for the preservation of
the trust property and the assertion or protection of the title thereto.
Trustee not to set up title adverse to the interest of beneficiary:
It has been defined in sec 14 of the Act which is reproduced below:
Trustee must not for himself or another set up or aid any title to the trust property adverse
to the interest of the beneficiary.
Duty to exercise care in dealing with Trust property:
It has been defined in sec 15 of the Act which is reproduced below:
A trustee is bound to deal with the trust property as carefully as a man of ordinary
prudence would deal with such property if it were his own; and, in the absence of a
contract to the contrary, a trustee so dealing is not responsible for the loss, destruction or
deterioration of the trust property.
Duty to convert property of wasting nature into property of a permanent and
profitable character:
It has been defined in sec 16 of the Act which is reproduced below:
Where the trust is created for the benefit of several persons in succession, and the trust
property is of a wasting nature or a future or reversionary interest, the trustee is bound,
unless an intention to the contrary may be inferred from the instrument of trust, to convert
the property into property of a permanent and immediately profitable character.
Duty to be impartial:
It has been defined in sec 17 of the Act which is reproduced below:
• Where there are more beneficiaries than one, the trustee is bound to be impartial,
and must not execute the trust for the advantage of one at the expense of another.
• Where the trustee has a discretionary power, nothing in this section shall be
deemed to authorize the Court to control the exercise reasonably and in good faith
of such discretion.
• In case of breach of trust, trustee shall be personally liable and after his death, the
burden shall fall on his
• estate.
• Trustee liable for any interest and damages due to breach of trust.
• Trustee not liable on account of any default by his predecessor
• Rights of the Trustees:
• Right of possession of instrument of trust and all documents of title.( Sec 31 )
• Right of reimbursement of expenses incurred by the trustee with respect to trust
property. (Sec 32)
• Right to be indemnified: It has been defined in sec 33 of the Act which is
reproduced below:
A person other than a trustee who has gained an advantage from a breach of trust must
indemnify the trustee to the extent of the amount actually received by such person under
the breach; and where he is a
beneficiary the trustee has a charge on his interest for such amount. Nothing in this
section shall be deemed to entitle a trustee to be indemnified who has, in committing the
breach of trust, been guilty of fraud.
• Any trustee may, without instituting a suit, apply by petition to a principal Civil
Court of original jurisdiction for its opinion, advice or direction on any present
questions respecting the management or administration of the trust property other
than questions of detail, difficulty or importance, not proper in the opinion of the
Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by,
such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion,
advice or direction given by the Court shall be deemed, so far as regards his own
responsibility, to have discharged his duty as
such trustee in the subject matter of the application.
The costs of every application under this section shall be in the discretion of the Court to
which it is made.
Powers of the Trustees:
Power to sell Trust Property:
It has been defined in sec 37 of the Act which is reproduced below:
Where the trustee is empowered to sell any trust property, he may sell the same subject to
prior charges or not, and either together or in lots, by public auction or private contract,
and either at one time or at several times, unless the instrument of trust otherwise directs.
Power to convey or otherwise dispose off the Trust Property
It has been defined in sec 39 of the Act
Power to apply property for the benefit/ interest of the minor: Sec 41:
It has been defined in sec 41 of the Act which is reproduced below:
Where any property is held by a trustee in trust for a minor, such trustee may, at his
discretion, pay to the guardians (if any) of such minor, or otherwise apply for or towards
his maintenance or education or advancement in life, or the reasonable expenses of his
religious worship, marriage or funeral
Power to give Receipt:
It has been defined in sec 42 of the Act which is reproduced below:
Any trustees or trustee may give a receipt in writing for any money, securities or other
moveable property payable, transferable or deliverable to them or him by reason, or in the
exercise, of any trust or power; and,
in the absence of fraud, such receipt shall discharge the person paying, transferring or
delivering the same there from, and from seeing to the application thereof, or being
accountable for any loss or misapplication
thereof.
Power to Compound/ Compromise:
It has been defined in sec 43 of the Act which is reproduced below:
• Two or more trustees acting together may, if and as they think fit, — accept any
composition or any security for any debt or for any property claimed;
• allow any time for payment of any debt;
• compromise, compound, abandon, submit to arbitration or otherwise settle any
debt, account, claim or thing whatever relating to the trust
Disabilities of Trustees:
• Trustee who has accepted the trust cannot afterwards renounce it except in
situations as contained in section 46
• A trustee cannot delegate his office or any of his duties either to a co trustee or to
a stranger except in
• When there are more than one trustees, all must join in the execution of the trust,
except where the instrument of trust otherwise provides.
• Discretion power conferred on a trustee must be exercised reasonably or in good
faith as provided in section 49.
• A trustee may not use or deal with the trust property for his own profit or for any
other purpose
• unconnected with the trust.
• trustee whose duty is to sell the trust property shall not himself buy the property.
Rights of Beneficiary:
• Beneficiary has right to the rents and profits of the trust property. Sec 55.
• Right to specific execution if beneficiary is so entitled according to intention of
the author of the trust. Sec 56.
• The right to inspect and take copies of the instrument of trust and documents of
title relating to the trust
• Right to institute the suit for the execution of the trust. Sec 59
Liabilities of Beneficiary:
Beneficiary is liable when he has committed breach of trust as outlined below:
• Failure to proceed a trustee, where beneficiary has knowledge that trustee has
committed a breach.
• Joins in committing breach of trust, or
• Beneficiary deceives a trustee.
• the office of a trustee is vacated by his death or by his discharge from his office.
Sec 70
• Discharge of a trustee: A trustee may be discharge from his office as provided
below:
LAW OF INSURANCE
Matters relating to insurance are governed by Insurance Ordinance, 2000. It extends to
the whole of
Pakistan. The Securities and Exchange Commission of Pakistan (SECP) shall be the
regulatory authority to implement this law.
Concept of Insurance:
• Risk and uncertainties are the part of human life and businesses.
• There are risks of different types and dimensions and culminating in loss of
human life and property. These may occur due to death of a person, accident,
earth quake, fire, floods and riots.
• Since the underlying risk is uncertain therefore the loss likely to arise from such
risk is also uncertain.
• The desire of the people and the businesses is to mitigate the underlying risks.
Insurance provides a
Important Definitions:
“Insurance” means the business of entering into and carrying out policies or contracts, by
whatever name called, whereby, in consideration of a premium received, a person
promises to make payment to another
person contingent upon the happening of an event, specified in the contract, on the
happening of which the second-named person suffers loss, and includes reinsurance and
retrocession:
–Provided that a contract of life insurance shall be deemed to be a contract of insurance
notwithstanding that it may not comply with the definition set out in this clause;
“Insurance broker” means a person carrying on the business of insurance
“Insurer” means:
(i) any company or other body corporate carrying on the business of insurance, which is a
company or other body corporate incorporated under any law for the time being in force
in Pakistan; and
(ii) any body corporate incorporated under the law of any jurisdiction outside Pakistan
carrying on insurance business which carries on that business in Pakistan.
“participating”, in reference to life insurance business, means contracts of life insurance,
other than investment-linked contracts, health contracts, group life contracts and group
health contracts, under the
terms and conditions of which the policy holder has an entitlement to participate in
distributions by the life insurer of profits or surpluses;
“Policy” means a contract of insurance;
“policy holder / insured” means the person to whom a policy is issued or, in the case of a
policy of life insurance, the person to whom the whole of the interest of the policy holder
in the policy is assigned once and for all, but does not include an assignee thereof whose
interest in the policy is defeasible or is for the time being subject to any condition;
“Policyholder liability”, in relation to life insurance, means:
(i) a liability that has arisen under a policy of life insurance; or
(ii) a liability that, subject to the terms and conditions of a policy, will arise on the
happening of an event, or
at a time, specified in the policy;
“private motor property damage policy” means a contract of insurance that provides
insurance cover in respect of loss of or damage to a motor vehicle or of the contents of a
motor vehicle used primarily and principally as a means of private transport by the policy
holder, by persons with whom the policy holder has a family or personal relationship, or
by both the policy holder and such persons; “Premium”
The consideration received by the insurer from the insured with the undertaking to take
up the risk with regard to the property insured is called premium.
“Insured amount/ policy amount”
This refers to the amount for which insurance policy is issued.
“reinsurance” means a contract of insurance under which the event, specified in the
contract, contingent upon the happening of which, payment is promised to be made to the
policy holder thereunder, is payment
by the policy holder of a claim or claims made against that policy holder under another
contract or contracts of insurance issued by that policy holder; “Subject matter”
The property or the object which is insured is called the subject matter.
“Takaful” means a scheme based on mutual assistance in compliance with the provisions
of Islamic shariah, and which provides for mutual financial aid and assistance to the
participants in case of occurrence of certain contingencies and whereby the participants
mutually agree to contribute to the common fund for that purpose;
Essentials of a contract of insurance:
Following are the essentials of a contract of insurance:
• Life insurance
• General insurance (including fire insurance, marine insurance and miscellaneous
insurance)
Life Insurance:
It is the type of insurance whereby insurer undertakes to pay a certain amount on the
death of the insured or on expiry of certain period of time, the insurer charges premium
on account of this undertaking. Kinds of Life Insurance:
Whole life policy:
In such policies the person insured undertakes to pay the premium to the insurer in his
life time and on his death the policy amount is payable to the legal heirs of the assured/
insured.
Endowment policy: In this type, the insured person is require to pays the premium for a
stipulated period of time and the amount insured is payable to the insured on the expiry of
this period, however in case of death of the insured before this period, the amount insured
is payable to the legal heirs of the insured.
Joint Life Policy: it is a joint policy in the name of two or more persons. In such type of
policy if any of the
joint policy holders dies, the amount insured is payable to the survivors.
Procedure and Methodology in acquiring life insurance:
Each one of above is provided below as contained in the relevant sections of the
ordinance.
Strike and lockout:
days notice to the employer, may go on strike or, as the case may be, the employer may
declare a lock-out on the expiry of the period of the notice under section 27 or upon a
declaration by the Conciliator or the Board that conciliation proceedings have failed,
whichever is the later.
Following provisions of law shall apply with respect to different aspects of trade unions
and freedom of associations:
(1) Subject to the provision of Article 17 of the Constitution of the Islamic Republic of
Pakistan, this Ordinance and any other law for the time being in force-
(a) the workers shall, without distinction whatsoever, have the right to form and subject
to the constitution or rules of a trade union, join any trade union of their choice within the
establishment or industry they are employed in; provided that worker shall not be entitled
to be a member of more than one trade union at any one time; provided further that on
joining another union, the earlier membership will stand automatically
cancelled;
(b) the employers, shall, without distinction whatsoever, have the right to form or join
any association of
their choice and their association shall have the right to draw up their constitution and
rules, elect freely their representatives, organize their administration and activities and
formulate their programmes; (c) trade unions of workers and associations of employers
shall have the right to form and join federations and confederations of trade unions and
associations, and such federations and confederations shall have the right to affiliate with
international organizations and confederations of workers and employers, as the case may
be; and
(d) every collective bargaining agent union shall have to affiliate with any federation at
the national level
registered with the National Industrial Relations Commission within two months after its
determination as collective bargaining agent or promulgation of this Ordinance,
whichever is earlier.
(2) The workers and employers and their respective bodies shall, exercising their rights
under section (1), like other persons or organized collectivities, respect and abide by all
Federal and Provincial laws.
Registration of Trade Union:
The following procedure shall be adopted with respect to registration of a trade union:
• Filing of the application for registration of the trade union as per requirements of
the ordinance
Appeal against the cancellation can be made before the following courts:
• In case of cancellation by labour court, appeal shall be made before the High
Court.
• In case of cancellation of registration by the Registrar, appeal shall be made
before the labour court. (Sec 13).
The Joint Works Council may call for reasonable information about the working of the
establishment from its management and the management shall supply the information
called for.
The Joint Works Council shall meet at such intervals as may be prescribed.
Settlement of differences and industrial disputes:
The differences and industrial disputes shall be settled through following methods:
• Negotiations
• Conciliation
• Arbitration
INDUSTRIAL RELATIONS ORDINANCE
Workers’ Participation and Dispute Resolution:
Settlement of differences and industrial disputes:
The differences and industrial disputes shall be settled through following methods:
• Negotiations
• Conciliation
• Arbitration
• Where a settlement is not reached between the employer and the collective
bargaining agent, the
employer or the collective bargaining agent may, within fifteen days from the end of the
period referred to
in sub-section (2), serve on the other party to the dispute a notice of conciliation, in
accordance with the
provisions of this Ordinance.
• Where a settlement is not reached between the employer and the collective
bargaining agent, the employer or the collective bargaining agent may, within
fifteen days from the end of the period referred to
in sub-section (2), serve on the other party to the dispute a notice of conciliation, in
accordance with the
provisions of this Ordinance.
Conciliator:
The Provincial Government shall, by notification in the official Gazette, appoint as many
persons as it considers necessary to be Conciliators for the purposes of this Ordinance
and shall specify in such notification the area within which, or the class of establishments
or industries in relation to which, each one of them shall perform his functions.
The Federal Government may, by notification in the official Gazette, appoint as many
persons as it considers necessary to act as Conciliators in such disputes as the National
Industrial Relations Commission is competent to adjudicate and determine under this
Ordinance.
A tripartite Board of Conciliators, hereinafter called the Board, consisting of men of
standing competence shall be appointed on the request of the party raising the dispute, by
the Federal Government
or by a Provincial Government, as the case may be, by notification in the official Gazette,
to conciliate in an industrial dispute involving more than one establishment in a Province
or in an industry at national level or in an industrial dispute of national importance, if the
negotiations are not satisfactorily progressing. The Board constituted under sub-section
(3) shall stand dissolved on the settlement of dispute or on the failure of conciliation
proceedings.
Period of notice of conciliation.- The period of a notice of conciliation under sub-section
(3) of section 25 shall be fifteen days.
Conciliation after notice:- Where a party to an industrial dispute serves a notice of
conciliation under sub-
section (3) of section 25, it shall, simultaneously with the service of such notice, deliver a
copy thereof to
the Conciliator who shall proceed to conciliate in the dispute and to the Labour Court.
Proceedings before Conciliator:
(1) The Conciliator or the Board shall, as soon as possible, call a meeting of the parties to
a dispute for the purpose of bringing about a settlement.
(2) The parties to a dispute shall be represented before the Conciliator or the Board by
persons nominated by them and authorized to negotiate and enter into an agreement
binding on the parties:
Provided that if, in the opinion of the Conciliator or the Board, the presence of the
employer or any office bearer of the trade union connected with the dispute is necessary
in a meeting called by him, he or, as the case may be, it shall give notice in writing
requiring the employer or such office bearer to appear in person before him or it at the
place, date and time, specified in the notice and it shall be the duty of the employer or the
office bearer of trade union to comply with the notice.
The Conciliator or the Board shall perform such functions in relation to a dispute before
him or it as may be prescribed may, in particular, suggest to either party to the dispute
such concessions or modifications in its demand as are in the opinion of the Conciliator
or the Board likely to promote an amicable settlement of the dispute.
If a settlement of the dispute or of any matter in dispute is arrived at in the course of the
proceedings before him or it, the Conciliator or the Board shall send a report thereof to
the Provincial Government or the Federal Government, as the case may be, together with
the memorandum of settlement signed by the parties to the dispute. (5) If no settlement is
arrived at within the period of the notice of conciliation, the conciliation proceedings may
be continued for such further period as may be agreed upon by the parties.
Arbitration:
If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer
the dispute to an arbitrator, and in case the parties agree, they shall make a joint request
in writing for reference of the dispute to an arbitrator agreed upon by them.
The arbitrator to whom a dispute is referred under sub-section (1) may be a person borne
on a panel to be maintained by a Provincial Government or the Federal Government as
the case may be or any other person agreed upon by the parties.
The arbitrator shall give his award within a period of thirty days from the date on which
the dispute is referred to him under sub-section (1) or such further period as may be
agreed upon by the parties to the dispute.
After the arbitrator has made the award, he shall forward a copy thereof to the parties and
to a Provincial Government or the Federal Government, as the case may be, who shall
cause it to be published in the official Gazette.
The award of the arbitrator shall be final and no appeal shall lie against it and shall be
valid for a period not exceeding two years or as may be fixed by the arbitrator.
Strike and lockout:
If no settlement is arrived at during the course of conciliation proceedings and the parties
to the dispute do not agree to refer it to an arbitrator under section 30, the workmen,
subject to a seven days notice to the employer, may go on strike or, as the case may be,
the employer may declare a lock-out on the expiry of the period of the notice under
section 27 or upon a declaration by the Conciliator or the Board that conciliation
proceedings have failed, whichever is the later.
The party raising a dispute may at any time, either before or after the commencement of a
strike or lock-out, make an application to the Labour Court for adjudication of the
dispute.
Where a strike or lock-out lasts for more than fifteen days, the Federal Government, if it
relates to a dispute which the Commission is competent to adjudicate and determine, and
a Provincial Government, if it relates to any other dispute, may, by order in writing,
prohibit the strike or lock-out;
Provided that the Federal Government may, with respect to a strike or lock-out relating to
a dispute which the Commission is competent to adjudicate and determine and the
Provincial Government, with the previous approval of the Federal Government may, with
respect to any other strike or lock-out, by order in writing, prohibit a strike or lock-out at
any time before the expiry of thirty days, if its is satisfied that the continuance of such a
strike or lock-out is causing serious hardship to community or is prejudicial to the
national interest;
Provided further that the Federal Government or a Provincial Government, as the case
may be, shall prohibit, by an order in the official Gazette, the commencement of a strike
or lock-out, as the case may be, if the same, in the opinion of the Government concerned,
is detrimental to the interest of the community at large.
In any case in which the Federal Government or a Provincial Government prohibits a
strike or lock-out it shall forthwith refer the dispute to the Commission or, as the case
may be, the Labour Court.
The Commission, or as the case may be, the Labour Court shall, after giving both the
parties to the dispute an opportunity of being heard, make such award as it deems fit as
expeditiously as possible but not exceeding thirty days from the date on which the dispute
was referred to it;
Provided that the Commission, or as the case may be, the Labour Court may make an
interim award on any matter of dispute; Provided further that any by the Commission or,
as the case may be, the Labour Court in making an award shall not affect the validity or
any award by it.
An award of the Commission or, as the case may be, the Labour Court shall be for such
period, as may be specified in the award, but shall not be for more than two years.
INDUSTRIAL RELATIONS ORDINANCE
Forums for Adjudication of disputes available under the ordinance:
• Labour courts
• Appeal to the High Court
• National Industrial Relations Commission The provisions with regard to above
forums as provided in Industrial Relations Ordinance, 2002 are given
below:
Labour Courts:
It has been defined in section 44 of the Ordinance which is given below:
(1) A Provincial Government may, in consultation with the Chief Justice of the respective
High Court, by notification in the official Gazette, establish as many Labour Courts as it
considers necessary and, where it
establishes more than one Labour Court, shall specify in the notification the territorial
limits within which or the industry or the classes of cases in respect of which, each one of
them shall exercise jurisdiction under this Ordinance.
(2) A Labour Court shall consist of one Presiding Officer appointed by a Provincial
Government, in consultation with the Chief Justice of the respective High Court.
(3) A person shall not be qualified for appointment as Presiding Officer unless he has
been, or is qualified to be, Judge or Additional Judge of the respective High Court or is a
District Judge.
(4) A Labour court shall-
(a) adjudicate and determine an industrial dispute which has been referred to or brought
before it under this Ordinance;
(b) enquire into or adjudicate any matter relating to the implementation or violation of a
settlement which is referred to it by a Provincial Government;
(c) try offences under this Ordinance and such other offences under any other law as the
Provincial Government may, by notification in the official Gazette, specify in this behalf;
and
(d) exercise and perform such other powers and functions as are or may be conferred
upon or assigned to it by or under this Ordinance or any other law.
Procedure and powers of Labour Court:
It has been defined in section 45 of the Ordinance which is given below:
(1) Subject to the provisions of this Ordinance, while trying an offence a Labour Court
shall follow as nearly as possible summary procedure as provided under the Code of
Criminal Procedure, 1898 (Act V of 1898).
(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial
dispute, be deemed to be a Civil Court and shall have the same powers as are vested in
such Court under the Code of Civil
Procedure, 1908 (Act V of 1908), including the powers of-
(2) (a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects; and (c) issuing
commissions for the examination of witnesses or documents.
(3) A Labour Court shall, for the purpose of trying an offence under this Ordinance or the
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,
1968 (W.P. Ordinance VI of 1968),
or any other labour law, have the same powers as are vested in the Court of a Magistrate
of the first class specially empowered under section 30 of the Code Criminal Procedure,
1898 (Act V of 1898).
(4) No court fee shall be payable for filling, exhibiting or recording any document in, or
obtaining any
document from a Labour Court.
(5) If the parties to a case, at any time before a final order is passed by a Labour Court
that matter has been resolved by them amicably and that there are sufficient grounds for
withdrawing the case, it may allow such withdrawal.
Redress of individual grievances:
It has been defined in section 46 of the Ordinance which is given below:
(1) A worker may bring his grievance in respect of any right guaranteed or secured to him
by or under any law or any award or settlement for the time being in force to the notice of
his employer in writing,
either himself or through his Shop Steward or collective bargaining agent, within one
month of the day on which cause of such grievance arises.
(2) Where a worker brings his grievance to the notice of an employer himself or through
his Shop Steward or collective bargaining agent, the employer shall, within fifteen days
of the grievance being brought to his notice, communicate his decision in writing to the
worker.
(3) If an employer fails to communicate a decision within the period specified in sub-
section (2) or if a worker is dissatisfied with such decision, the worker or Shop Steward
may take the matter to his collective bargaining agent or the Labour Court, as the case
may be, and where the matter is taken to the Labour Court, it shall give a decision within
seven days from the date of the matter being brought before it as if such matter were an
industrial dispute: Provided that a worker who desires to take the matter to the Labour
Court, he shall do so within a period of two months from the date of communication of
the employer or, as the case may be, from the expiry of the period specified in sub-
section (2).
(4) In adjudicating and determining a grievance under sub- section (3), the Labour Court
shall go into all the facts of the case and pass such orders as may be just and proper in the
circumstances of the case.
(5) The Labour Court, in case the termination of services of a workman is held to be
wrongful, may award compensation equivalent to not less than twelve months and not
more than thirty months basic pay last drawn and house rent, if admissible, in lieu of
reinstatement of the worker in service.
(6) If a decision under sub-section (4) or an order under sub-section (5) given by the
Labour Court or a decision of the High Court in an appeal against such a decision or
order is not given effect to or complied with within one month or within the period
specified in such order or decision, the defaulter shall additionally be punishable with
fine which may extend to ten thousand rupees.
(7) No person shall be prosecuted under sub-section (6) except on a complaint in writing
by a workman if the order or decision in his favour is not implemented within the period
specified therein.
(8) For the purposes of this section, workers having common grievance arising out of a
common cause of action may make a joint application to the Labour Court.
Awards and decision of Labour Court: sec 47
It has been defined in section 47 of the Ordinance which is given below:
(1) An award or decision of a Labour Court shall be given in writing and delivered in
open Court and two copies thereof shall be forwarded forthwith to a Provincial
Government, provided that if the Federal Government be a party, two copies of the award
or decision shall be forwarded to that Government as well.
(2) Government shall, within a period of one month from the receipt of the copies of the
award or decision, publish it in the official Gazette.
(3) Any party aggrieved by an award given under sub-section (1) or a decision given
under section 46 or on an application made under section 33 or a sentence passed in an
offence tried by the Labour Court under clause (c) of sub-section (4) of section 44 may
prefer an appeal to the High Court within thirty days of the delivery or passing thereof
and the decision of the High Court in such appeal shall be final.
(4) Save as otherwise expressly provided in this Ordinance, all decisions of, and all
sentences passed by, a Labour Court shall be final and shall not be called in question in
any manner by or before any court or other authority.
Appeal to the High Court:
It has been defined in section 48 of the Ordinance which is given below:
(1) The High Court may, on appeal, confirm, set aside, vary or modify the award or
decision given under section 46 or 33 a sentence passed under clause (c) of sub-section
(4) of section 44 and shall exercise all the powers conferred by this Ordinance on the
Labour Court, save as otherwise provided.
(2) The decision of the High Court shall be delivered as expeditiously as possible, within
a period of sixty days following the filing of an appeal, provided that such decision shall
not be rendered invalid by reason of any delay in its delivery.
(3) The High Court may, on its own motion, at any time, call for the record of any case or
proceedings under this Ordinance in which Labour Court within it jurisdiction has passed
an order, for the purpose of satisfying itself as to the correctness, legality, or propriety of
such order, and may pass such order, in relation thereto as it thinks fit:
Provided that no order under this sub-section shall be passed revising or modifying any
order adversely affecting any person without giving such person a reasonable opportunity
of being heard.
(4) The High Court, subject to its appellate jurisdiction, shall punish for contempt of its
authority, or that of any Labour Court with a fine which may extend to twenty five
thousand rupees.
(5) Any person if sentenced with a fine exceeding twenty thousand rupees by a single
bench of a High Court under sub- section (4) may prefer an appeal to the division bench
of that High Court.
(6) A High Court may, on its motion or on the application of any party, transfer any
application or proceeding from a Labour Court within its jurisdiction to any other Labour
Court.
(7) Notwithstanding anything contained in sub-section (3), if, in an appeal preferred to it
against the order of a Labour Court directing the re-instatement of a workman or
compensation in lieu thereof, the High Court makes an order staying the operation of the
order of the Labour Court, the High Court shall decide such appeal as soon as possible
but not later than sixty days.
LABOUR LAWS
Unfair Labour Practices:
Unfair Labour practices on the part of employer:
It has been defined in section 63of the Ordinance which is given below:
No employer shall:
(a) impose any condition in a contract of employment seeking to restrain the rights of a
person who is a party to such contract to join a trade union or continue his membership of
a trade union; or
(b) refuse to employ or refuse to continue to employ any person on the ground that such
person is or is not, a member or office-bearer of a trade union; or
(c) discriminate against any person in regard to any employment, promotion, condition of
employment or working condition on the ground that such person is or is not, a member
or office-bearer of a trade union; or
(d) dismiss, discharge, remove from employment or transfer a workman or injure him in
respect of his employment by reason that the workman-
(f) the expression ‘go slow’ means an organized, deliberate and purposeful slowing down
of normal output, or the deterioration of the normal quality, of work by a body of
workmen acting in a concerted manner, but does not include the slowing down of normal
output, or the deterioration of the normal quality, of work which is due to mechanical
defect, break-down of machinery, failure or defect in power-supply or in the supply of
normal materials and spare parts of the machinery. (2) It shall be an unfair labour practice
for a trade union to interfere with a ballot held under section 20 by the exercise of undue
influence, intimidation, impersonation or bribery through its executive or through any
person acting on its behalf.
Penalty for unfair labour practices:
• Whoever contravenes the provisions of section 64, other than those of clause (d)
of sub-section (1) thereof shall be punishable with fine may extend to twenty
thousand rupees.